United States District Court for the Northern District of Oklahoma

April 25, 2022, Decided; April 25, 2022, Filed

Case No. 20-CV-0374-CVE-SH

Reporter

2022 U.S. Dist. LEXIS 74480 *; 2022 WL 1213127

MAURICIO SANCHEZ, Plaintiff, v. S&H TRANSPORTATION, INC., DENNIS D. WOOD, JOHN DOE, a business entity, JANE DOE, an individual, Defendants.

Core Terms

negligent entrustment, driving, collision, training, chattel, driver, partial summary judgment, supervision, negligent hiring, retention, time of a collision

Counsel:  [*1] For Mauricio Sanchez, Plaintiff: John Paul Truskett, LEAD ATTORNEY, Truskett Law Firm PLLC, Tulsa, OK.

For S&H Transportation, Inc., a/k/a and/or d/b/a S&H Transportation a/k/a and/or d/b/a S&H a/k/a and/or d/b/a S&H Transport a/k/a and/or d/b/a S and H Transportation Inc. – a for profit business entity, S&H Transportation, S&H, S&H Transport, S and H Transportation Inc., Dennis D Wood, also known as, Dennis Wood, Defendants: Dan Steven Folluo, Rebecca Lynn Newman, LEAD ATTORNEYS, Rhodes Hieronymus Jones Tucker & Gable PLLC, TULSA, OK.

Judges: CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE.

Opinion by: CLAIRE V. EAGAN

Opinion

OPINION AND ORDER

Before the Court are defendant S&H Transportation, Inc.’s (S&H) motion for partial summary judgment (Dkt. # 42), plaintiff Mauricio Sanchez’s response (Dkt. # 48), plaintiff’s supplement to his response (Dkt. # 52), and S&H’s reply (Dkt. # 57). This case arises from a collision between plaintiff’s car and defendant Dennis D. Wood’s 2000 Kenworth semi-truck pulling a trailer for defendant S&H. On July 6, 2020, plaintiff filed a petition in the District Court of Tulsa County, Oklahoma alleging numerous claims for relief against defendants S&H, Wood, John Doe, and Jane Doe, including [*2]  negligence, negligent entrustment, and negligent hiring, training, supervision, and retention. Dkt. # 2-1. On July 30, 2020, defendants S&H and Wood removed the case to federal court pursuant to 28 U.S.C. §§ 1332 and 1441. On December 27, 2021, defendant S&H moved for partial summary judgment on the issues of negligent entrustment and negligent hiring, training, supervision, and retention. Dkt. # 42, at 1.

I.

The following facts are not in dispute: on January 6, 2019, while “driving within the course and scope of his employment with S&H[,]” defendant Wood “rear-ended [p]laintiff’s vehicle” on U.S. Highway 169. Dkt. # 42, at 1-2; Dkt. # 48, at 8, 11. Wood was the owner/operator of the 2000 Kenworth semi-truck (Dkt. # 42, at 2; Dkt. # 48, at 8), which was pulling a trailer for S&H, and driving under S&H’s U.S. Department of Transportation (DOT) authority. Dkt. # 48, 11; Dkt. # 57, at 2. On that day, plaintiff and Wood were both traveling southbound in the right lane on U.S. Highway 169, when Wood “drove his semi-tractor-trailer into the rear of [plaintiff’s] vehicle” traveling at “approximately 69 miles per hour.” Dkt. # 48, at 12; Dkt. # 57, at 2. “The impact caused [p]laintiff’s vehicle to spin around several [*3]  times, leave the roadway and [plaintiff’s vehicle] caught fire and burned.” Dkt. # 48, at 13; Dkt. # 57, at 2. Wood “agrees that [p]laintiff had the right-of-way at the time of the collision.” Dkt. # 48, at 14; Dkt. # 57, at 4.

Wood “claims he was looking straight down the road[,]” his “vision was not obscured[,]” the road was “level, straight and dry[,]” and traffic was “pretty light[.]” Dkt. # 48, at 11; Dkt. # 57, at 2. Moreover, Wood “denies he was having any difficulties with his vision; denies using his phone at the time of the collision; and denies he was asleep at the time of the collision.” Dkt. # 48, at 12; Dkt. # 57, at 2. In his deposition, Wood confirmed that “he did not see [plaintiff’s] vehicle until he hit it . . . [and he] does not know why he didn’t see [the] vehicle until immediately prior to the crash.” Dkt. # 48, at 12; Dkt. # 57, at 2.

Although defendants have not produced any relevant driver’s logs, Wood testified under oath that he was driving for two to three hours before the collision, and that he had slept six to eight hours before starting the drive. Dkt. # 48-1, at 16, 95. S&H submitted Wood’s drug testing results, performed less than 24 hours after the accident, [*4] ¹ which confirm that Wood was negative for amphetamines, cocaine, opioids, phencyclidine, and marijuana. Dkt. # 57-2, at 1. Additionally, Wood testified that he had not had any alcohol within 48 hours of the collision. Dkt. #48-1, at 102-03.

At the time of the collision, Wood had a valid commercial driving license (CDL) and was “medically approved for professional driving.” Dkt. # 42, at 2; Dkt. # 42-6, at 5-8 (DOT medical examiner’s report); Dkt. # 48, at 10-11. One month prior to the collision, on December 4, 2018, Wood underwent a DOT medical evaluation for CDL certification. Dkt. # 42-6, at 5-8. The medical examiner noted that Wood had ear or hearing problems, high blood pressure, diabetes, a sleep disorder, and a body mass index (BMI) of 48.4.² Id. at 6-7. Notwithstanding, the examiner concluded that Wood’s health conditions are well-controlled with medication, hearing aids, and a CPAP machine; Wood “[m]eets standards, but periodic monitoring required”; and the examiner medically certified Wood for one year for purposes of his CDL. Id. at 6, 8.

Prior to the collision, Wood had worked for S&H for nearly 30 years, except for a several month hiatus in 2015.³ Dkt. # 57-1, at 17; Dkt. # [*5]  48, at 11. Moreover, Wood testified that he had been a truck driver for 40 years. Dkt. # 48-1, at 97. Documents submitted by S&H show that at the time that it re-hired Wood in 2015, S&H performed a criminal background check and social security number verification; verified the number of Federal Motor Carrier Safety Administration (FMCSA) reportable crashes (which was zero); verified Wood’s employment history with his most recent previous employer, Frontier Leasing, Inc.; performed a drug test; performed a motor vehicle record (MVR) search; administered a road test (which Wood passed); confirmed that Wood received S&H’s driver’s manual; provided Wood with various policies, including log accuracy, prohibiting mobile phone use, and certain emergency procedures. Dkt. # 57-1, at 1-30. Moreover, S&H administered a written test regarding various policies and safety procedures, and submitted Wood’s certificate of training, which included “[g]eneral safe operating procedures.” Id. at 34-36. Finally, S&H submitted Wood’s post-collision MVR, which indicates that prior to the January 6, 2019 incident, Wood had one moving violation (not in his professional capacity), and one traffic accident in [*6]  his commercial vehicle, but no fault is indicated and it resulted in property damage only. Dkt. # 42-6, at 3.

II.

Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). “[A] party may file a motion for summary judgment at any time until 30 days after the close of all discovery[,]” Fed. R. Civ. P. 56(b), including before any discovery has been conducted. “Movants for summary judgment bear the initial burden of demonstrating the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Silverstein v. Federal Bureau of Prisons, 559 F. App’x. 739, 752 (10th Cir. 2014); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a [*7]  matter of law.” Id. at 250. In its review, the Court construes the record in the light most favorable to the party opposing summary judgment. Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

III.

Defendant S&H moves for partial summary judgment on the following claims:

a. Negligent Entrustment

In his petition, plaintiff alleged that the “truck [d]efendant Wood was driving at the time of the collision was owned . . . and/or controlled by [d]efendant S&H[.]” Dkt. # 2-1, at 2. In his response to S&H’s motion for partial summary judgment, plaintiff concedes that Wood is the owner/operator of the semi-truck that rear-ended plaintiff’s vehicle. Dkt. # 48, at 8. Plaintiff–precluded from arguing that S&H entrusted the semi-truck to Wood–pivots his theory of liability and argues that S&H is liable for “entrusting an incompetent or unfit driver with the power to drive under [d]efendant S&H’s [DOT] authority, where that driver causes injuries to another while operating under that authority.” Id. at 9.

According to the Supreme Court of Oklahoma, unlike vicarious liability under a respondeat superior cause of action, negligent entrustment “is based on direct liability[.]” Fox v. Mize, 2018 OK 75, 428 P.3d 314, 320 (Okla. 2018). “Negligent Entrustment requires proof that an individual supplies a chattel for [*8]  the use of another whom the supplier knows or should know is likely to use the chattel in a way dangerous and likely to cause harm to others.” Id. (internal quotations omitted). “Liability for negligent entrustment arises from the act of entrustment, not the relationship of the parties.” Id. (quoting Sheffer v. Carolina Forge Co., L.L.C., 2013 OK 48, 306 P.3d 544, 550 (Okla. 2013)) (emphasis in original).

Here, plaintiff must demonstrate that 1) S&H supplied a chattel to Wood, and 2) S&H knew or should have known that Wood was likely to use the chattel in a dangerous way likely to cause harm to others. The Court is highly skeptical that DOT authority is chattel within the meaning of a negligent entrustment claim.⁴ Even if, assuming arguendo, that DOT authority is chattel, plaintiff’s claim still fails, because he is unable to sufficiently show that S&H knew or should have known that entrusting its DOT authority to Wood was dangerous and likely to cause harm to others. Specifically, prior to the January 6, 2019 collision, Wood was medically cleared to drive pursuant to DOT standards, had a valid CDL, and his MVR shows an unremarkable traffic history–one traffic collision since 2015 in which he was not assigned fault. Moreover, there is no evidence to show that Wood [*9]  was sleep deprived or exceeded his legal hours of service. Cf. Byrd v. Ace Am. Ins. Co., No. 17-CV-0111-CVE-JFJ, 2018 WL 1569499, at *3 (N.D. Okla. Mar. 30, 2018) (noting that a finding of negligent entrustment could be supported where plaintiff came forward with evidence that a truck driver suffered from sleep apnea, notified his employer of his sleep apnea, and exceeded his legal hours of service). The Court finds that plaintiff has not submitted sufficient evidence from which a reasonable jury could find that S&H is liable for negligent entrustment. In other words, plaintiff has failed to produce evidence that shows S&H supplied chattel to Wood when it knew or should have known that Wood would use any such chattel in a dangerous way likely to cause harm to others. Therefore, the Court finds that defendant S&H’s motion for partial summary judgment (Dkt. # 42) should be granted as to the negligent entrustment claim against it.

b. Negligent Hiring, Training, Supervision, and Retention

According to Supreme Court of Oklahoma precedent, “[e]mployers may be held liable for negligence in hiring, supervising, or retaining an employee.” Le v. Total Quality Logistics, LLC, 431 P.3d 366, 375 (Okla. Civ. App. 2018) (citing N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592, 600 (Okla. 1999)). Namely, “[a]n employer is found liable if the employer had reason to believe that the person [*10]  would create an undue risk of harm to others. Employers are held liable for their prior knowledge of the servant’s propensity to commit the very harm for which damages are sought.” Id. “The critical element for recovery is the employer’s prior knowledge of the servant’s propensities to create the specific danger resulting in damage.” Presbyterian Church, 998 P.2d at 600.

Here, the undisputed facts establish that Wood was a seasoned driver with over 30 years of experience; was certified by a DOT medical examiner; had a valid CDL; passed a drug screen before S&H re-hired him; had zero FMCSA-reportable crashes at the time of his 2015 hiring; received S&H’s driver’s manual; obtained S&H training certifications; and passed S&H’s written quiz and road test. Moreover, since S&H re-hired him in 2015, Wood had one accident while driving his commercial vehicle (prior to the January 6, 2019 collision), and Wood’s MVR indicates that he was not at fault, which Wood corroborates in his sworn testimony, Dkt. # 48-1, at 107. In sum, plaintiff failed to present evidence that S&H had prior knowledge or a reason to believe that Wood would create an undue risk of harm to others. Thus, plaintiff is unable to make a sufficient showing from [*11]  which a reasonable jury could find that S&H is liable for negligent hiring, training, supervision, and retention. Therefore, the Court finds that defendant S&H’s motion for partial summary judgment (Dkt. # 42) should be granted as to plaintiff’s negligent hiring, training, supervision, and retention claim against S&H.

IT IS THEREFORE ORDERED that defendant S&H Transportation, Inc.’s (S&H) motion for partial summary judgment (Dkt. # 42) is granted as to plaintiff’s negligent entrustment and negligent hiring, training, supervision, and retention claims against defendant S&H.

IT IS FURTHER ORDERED that plaintiff is directed to show cause, within 14 days, as to why defendants John Doe and Jane Doe have not been served, and to show good cause as to why the Court should not dismiss this case as to those defendants.

DATED this 25th day of April, 2022.

/s/ Claire V. Eagan

CLAIRE V. EAGAN

UNITED STATES DISTRICT JUDGE

End of Document

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¹ The traffic collision report shows that the incident occurred at 4:30 a.m. on January 6, 2019, Dkt. # 42-1, at 2, and the drug testing results show that a urine sample was collected at 12 a.m. on January 7, 2019, Dkt. # 57-2, at 1.

²A BMI of 30.0 and above is considered obese. https://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/index.html.

³ The Court notes that S&H denies that Wood worked for S&H for 30 years, Dkt. # 57, at 2; however, S&H’s submitted evidence indicates that Wood worked at S&H from August 1991 until December 2015, and then from May 2015 on, including at the time of the collision. Dkt. # 57-1, at 16-17. S&H claims that it has been in business since 1994, not 1991, Dkt. # 57, at 2; even so, the record evidence shows that Wood worked for S&H for approximately 25-28 years.

⁴ The Court notes that plaintiff presents no evidence or argument that the trailer, which Wood’s semi-truck was pulling for S&H, was the chattel that S&H negligently entrusted to Wood. In his response to S&H’s motion for partial summary judgment, plaintiff argues that the chattel that S&H negligently entrusted to Wood was its DOT authority only. See Dkt. # 48, at 9, 23. Accordingly, the Court will analyze plaintiff’s negligent entrustment claim as to S&H’s DOT authority only.

Court of Appeals of Texas, Sixth District, Texarkana

February 9, 2022, Submitted; April 22, 2022, Decided

No. 06-21-00089-CV

Reporter

2022 Tex. App. LEXIS 2639 *; 2022 WL 1193671

MARTIN MATA, AND WIFE ENNA FERNANDEZ MATA INDIVIDUALLY AND FABRIZIO MATA, Appellants v. ARGOS USA LLC, Appellees

Prior History:  [*1] On Appeal from the 61st District Court, Harris County, Texas. Trial Court No. 2018-62967-D.

Core Terms

summary judgment, Transportation, summary judgment motion, motor carrier, trial court, hiring, produce evidence, truck, contractors, grant summary judgment, policies, shipper, regulations, deliver, trailer, loads, gross negligence, cause of action, no evidence, Aggregates, grounds, right to control, common-law, genuine issue of material fact, independent contractor, supporting argument, standard of care, no-evidence, vicariously, interstate

Case Summary

Overview

HOLDINGS: [1]-The trial court did not err in granting the company’s summary judgment on the negligence claims under Tex. R. Civ. P. 166a because the claimants did not challenge the finding that at the time of the accident, the company was the shipper, not a motor carrier under the Federal Motor Carrier Safety Regulations (FMCSR). Also, it produced evidence that it did not control, operate, or direct either the logistics company or the operation of the trucking company’s vehicle.

Outcome

Judgment affirmed.

LexisNexis® Headnotes

Civil Procedure > Appeals > Standards of Review > De Novo Review

Evidence > Inferences & Presumptions > Inferences

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

HN1  Standards of Review, De Novo Review

An appellate court’s review of a summary judgment is de novo. Where a trial court’s summary judgment does not specify the ground or grounds on which it was granted, appellate courts uphold the trial court’s judgment if properly supported by any ground asserted in the motion. When reviewing a summary judgment, appellate courts take as true all evidence favorable to a nonmovant, and appellate courts indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.

Civil Procedure > Judgments > Summary Judgment > Burdens of Proof

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

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

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

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

HN2  Summary Judgment, Burdens of Proof

To be entitled to traditional summary judgment, a movant must establish there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. A defendant who conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment on that claim. Once the movant produces evidence entitling it to summary judgment, the burden shifts to a nonmovant to present evidence raising a genuine issue of material fact. Evidence is conclusive only if reasonable people could not differ in their conclusions.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors > Abnormally Dangerous Activities

Torts > Vicarious Liability > Independent Contractors > Nondelegable Duties

Torts > Vicarious Liability > Independent Contractors > Owners & Possessors of Real Property

Torts > … > Affirmative Duty to Act > Types of Special Relationships > Employers

HN3  Employment Relationships, Independent Contractors

Generally, an employer has no duty to ensure that an independent contractor performs its work in a safe manner. However, if the work itself involves a nondelegable duty, whether inherently dangerous or statutorily prescribed, the employer is generally held liable for an independent contractor’s tortious acts.

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

Torts > Vicarious Liability > Bailees

Torts > Vicarious Liability > Independent Contractors > Nondelegable Duties

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

HN4  Commercial Drivers & Vehicles, Maintenance & Safety

The Federal Motor Carrier Safety Regulations (FMCSR) creates a nondelegable duty for motor carriers authorized to operate by the Federal Motor Carrier Safety Administration. Where under the FMCSR interstate motor carriers have a legal right and duty to control leased vehicles that are operated for their benefit, the regulations create a statutory employee relationship between the employees of the owner-lessors and the lessee-carriers. As a result, an interstate motor carrier is vicariously liable as a matter of law under the FMCSR for the negligence of its statutory employee drivers.

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

Insurance Law > … > Coverage > Compulsory Coverage > Motor Carriers

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

HN5  Commercial Drivers & Vehicles, Maintenance & Safety

When analyzing whether a defendant is a motor carrier, a court must focus on the specific transaction at issue, not merely whether a defendant is certified as a motor carrier. This means that possession of a motor carrier license is not determinative of the applicability of the Federal Motor Carrier Safety Regulations (FMCSR); rather, the critical inquiry is what capacity the defendant was acting during the transaction or incident. Federal courts have specifically held that shippers who engage independent contractors to transport goods are not subject to the FMCSR.

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

HN6  Summary Judgment Review, Standards of Review

When, a movant asserts multiple grounds for summary judgment, and a trial court does not specify in an order the ground on which summary judgment was granted, an appellant must negate all grounds on appeal. If the appellant fails to challenge all grounds on which the judgment may have been granted, the appellate court must uphold the summary judgment.

Civil Procedure > Appeals > Appellate Briefs

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review

Civil Procedure > Appeals > Record on Appeal

HN7  Appeals, Appellate Briefs

The appellate rules require that a brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(i).

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

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Transportation Law > Carrier Duties & Liabilities > Definitions

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

HN8  Commercial Drivers & Vehicles, Licensing & Registration

The Texas Regulations apply to commercial motor vehicles’ and hold motor carriers’ responsible for their employees. Texas law defines motor carrier as an individual or other legal entity that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo.

Governments > Courts > Judicial Precedent

HN9  Courts, Judicial Precedent

Appellate courts look to federal case law for guidance.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Insurance Law > … > Coverage > Compulsory Coverage > Motor Carriers

Transportation Law > Carrier Duties & Liabilities > Definitions

HN10  Common Carrier Duties & Liabilities, State & Local Regulation

In analyzing whether a defendant is a motor carrier, appellate courts focus on the specific transaction at issue. Thus, an individual or legal entity is a motor carrier (and therefore responsible for its employees) if it controlled, operated, or directed the operation of the truck during the transaction or incident. At the same time, an entity that instructs the transporter of goods where to pick up and deliver the goods, and that does not control, operate, or direct the operation of the truck, acts as a shipper, not a motor carrier, and is not liable for the torts of the transporter.

Torts > Vicarious Liability > Independent Contractors > Collateral Negligence

Torts > Vicarious Liability > Independent Contractors > Owners & Possessors of Real Property

Torts > … > General Premises Liability > Defenses > Independent Contractors

HN11  Independent Contractors, Collateral Negligence

An employer generally has no duty to ensure that an independent contractor performs its work in a safe manner. Even so, it can be held vicariously liable for its independent contractor’s actions if the owner retains some control over the manner in which the contractor performs the work that causes the damage. But an employer can direct when and where an independent contractor does the work and can request information and reports about the work without assuming vicarious liability.

Business & Corporate Law > … > Establishment > Elements > Application of Agency Law Principles

Business & Corporate Law > … > Establishment > Elements > Right to Control by Principal

Business & Corporate Law > … > Duties & Liabilities > Causes of Action & Remedies > Burdens of Proof

Business & Corporate Law > Agency Relationships > Establishment > Definitions

HN12  Elements, Application of Agency Law Principles

An agent is one who is authorized by a person or entity to transact business or manage some affair for the person or entity. The critical element of an agency relationship is the right to control, and the principal must have control of both the means and details of the process by which the agent is to accomplish his task in order for an agency relationship to exist. Absent proof of the right to control the means and details of the work performed, only an independent contractor relationship is established.

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

Torts > Negligence > Elements > Duty

HN13  Standards of Review, Questions of Fact & Law

A legal duty must exist before a defendant can be liable for negligence. Whether a duty exists is a question of law for a court to decide from the facts surrounding the occurrence in question. A company’s internal policies, taken alone, do not establish the standard of care. Likewise, a company’s internal policies or procedures do not create a negligence duty where none would otherwise exist.

Torts > Negligence > Gross Negligence

HN14  Negligence, Gross Negligence

Without a legal duty, a claim for negligence fails. Likewise, without a legal duty there can be no gross negligence. A finding of gross negligence requires a finding that a defendant owed a duty of care to a plaintiff.

Civil Procedure > Appeals > Standards of Review > Reversible Errors

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

HN15  Standards of Review, Reversible Errors

Summary judgments may only be granted upon grounds expressly asserted in the summary judgment motion. Further, granting a summary judgment on a claim not addressed in the summary judgment motion is, as a general rule, reversible error.

Civil Procedure > … > Standards of Review > Harmless & Invited Errors > Harmless Error Rule

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

HN16  Harmless & Invited Errors, Harmless Error Rule

The harmless error rule applies to summary judgments. For that reason, although a trial court errs in granting a summary judgment on a cause of action not expressly presented by written motion, the error is harmless when the omitted cause of action is precluded as a matter of law by other grounds raised in a case. Thus, a summary judgment may be affirmed even though the motion omitted one of multiple causes of action, when the omitted ground was intertwined with, and precluded by, a ground addressed in the motion.

Counsel: For Martin Waldomero Mata, Enna Fernandez Mata, and Fabrizio Mata, Appellant: Scott Rothenberg, David Sheller.

For Southern Crushed Concrete, Inc., Travis Body and Trailer, Inc., Spiritual Logistics LLC. et al., Appellee: Richard Mosher, Michael Walter Magee, Kathryn Lynn Brown Ward, Walter F. “Trey” Williams.

For Argos USA, L.L.C., Appellee: Richard A. Harwell, Fernando Pablo Arias, Meredith Livermore.

Judges: Before Morriss, C.J., Stevens and Carter,^* JJ. Memorandum Opinion by Justice Stevens.

Opinion by: Scott E. Stevens

Opinion

MEMORANDUM OPINION

On the afternoon of April 3, 2018, another driver lost control of his vehicle and struck the passenger side of Martin Mata’s vehicle, forcing him into a lane of traffic occupied by a tractor-trailer owned by Efrain Lozano d/b/a Lozano Trucking (Lozano) and driven by Luis Hernandez. Martin’s vehicle struck the right quarter panel of Lozano’s trailer, became lodged underneath the trailer, and was dragged until Hernandez could stop the vehicle. As a result, Martin and his family (collectively the Matas) sued, among others, Lozano, Hernandez, Spiritual Logistics LLC (Logistics), River [*2]  Aggregates LLC (Aggregates), and Argos USA LLC (Argos USA) for the injuries they allegedly suffered as a result of the accident.¹ The Matas appeal the summary judgment in favor of, and the dismissal of all of their claims against, Argos USA. For the reasons stated, we affirm the trial court’s summary judgment and dismissal of all the Matas’ claims against Argos USA.

I. Background

In their live petition, the Matas alleged that Lozano and Hernandez negligently caused the Matas’ injuries because they failed to equip their trailer with side underride guards, were speeding, failed to timely apply the brakes, failed to properly maintain the brakes on their vehicles, and failed to take a thirty-minute break in eight hours. They alleged (1) that Argos USA was vicariously liable for the negligent acts and omissions of Lozano and Hernandez under the Federal Motor Carrier Safety Regulations (FMCSR) and the Texas Transportation Code, (2) that it was liable for the negligent hiring of Lozano and Hernandez both at common law and under the FMCSR and the Texas Transportation Code because Logistics was its agent, (3) that it had assumed a duty to ensure the safety of Lozano’s tractor/trailer by [*3]  its internal safety policies, (4) that it was negligent per se because it violated the FMCSR and the Texas Transportation Code, and (5) that its actions also constituted gross negligence.

Argos USA filed a traditional motion for summary judgment as to the Matas’ negligence claims against it, and both a traditional and no-evidence motion for summary judgment as to their claim for gross negligence. In its motion, Argos USA asserted that it owed no duty to the Matas under the FMCSR because (1) the tractor/trailer was not involved in interstate commerce and (2) Argos was a shipper of the property being transported, not a transporter of the property. It also asserted that it was not a motor carrier under the Texas Transportation Code because it did not control, operate, or direct the operation of Lozano’s tractor/trailer or its driver. As to the Matas’ common-law negligence claims, Argos USA asserted that it did not owe the Matas a duty because (1) neither Logistics nor Lozano was its agent, (2) it did not control or have the right to control the means and details of how the work was performed by Logistics or Lozano, (3) it was not an employer of Lozano or Hernandez, and (4) it did not have [*4]  a statutory or regulatory duty to maintain or monitor Lozano’s tractor/trailer. Regarding the Matas’ claim for gross negligence, Argos USA asserted that (1) it had no duty to the Matas, (2) since it was not negligent, gross negligence was precluded, and (3) there was no evidence that its acts or omissions involved an extreme risk or that it was subjectively aware of an extreme risk. Argos USA also moved to sever the Matas’ claims against it from the remainder of the case after the trial court granted its summary judgment motion.

In their response to the motion for summary judgment, the Matas argued that (1) Argos USA did not show, as a matter of law, that it was entitled to summary judgment on the Matas’ common-law negligent hiring claim; (2) Argos USA had a duty to hire competent independent contractors; (3) Argos USA breached that duty by failing to investigate Logistics and Lozano; (4) Argos USA had a duty to investigate safety practices of Logistics; (5) Argos USA failed to follow its own safety policies; and (6) failure to follow its own policies was some evidence of gross negligence. The Matas also argued that Argos USA was vicariously liable for Logistics’s and Lozano’s negligence [*5]  since they were Argos USA’s agents by virtue of it having its own Department of Transportation (DOT) number and choosing to confer its authority onto Logistics, using Logistics to arrange for trucks on a daily basis for eight years, and requiring that deliveries arrive at Argos USA’s facility at a certain time.

After Argos USA filed a reply to the Matas’ response and objected to some of the evidence that the Matas filed in support of their response, and after the Matas filed sur-replies and additional evidence, the trial court granted Argos USA’s summary judgment motion, dismissed all the Matas’ claims against Argos USA, and severed the Matas’ claims against Argos USA from the original lawsuit.

II. Standard of Review

HN1 “Our review of a summary judgment is de novo.” Reg’l Specialty Clinic, P.A. v. S.A. Randle & Assocs., P.C., 625 S.W.3d 895, 900 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). “Because the trial court’s summary judgment does not specify the ground or grounds on which it was granted, we uphold the court’s judgment if properly supported by any ground asserted in the motion.” Id. (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)). “When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id. (citing Dorsett, 164 S.W.3d at 661).

HN2 “To [*6]  be entitled to traditional summary judgment, a movant must establish there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law.” Id. (citing Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). “A defendant who conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment on that claim.” Id. (citing Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010)). “Once the movant produces evidence entitling it to summary judgment, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact.” Id. at 900-01 (citing Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996)). “Evidence is conclusive only if reasonable people could not differ in their conclusions.” City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)).

III. Argos USA Produced Sufficient Evidence to Entitle It to Summary Judgment

In their first and second issues, the Matas complain that the trial court erred in granting summary judgment on the issue of duty based on the applicability of federal and state statutes and regulations and on the Matas’ common-law agency and negligent hiring causes of action because Argos USA purportedly relied on a no-evidence standard, rather than the traditional summary judgment standard. Although the Matas brief these issues together, we will address [*7]  them separately.

A. Argos USA’s Liability Under the Federal Regulations

In support of its motion for summary judgment, Argos USA produced evidence that showed that, when it had a load of sand or aggregate it needed delivered to its plant, it would contact Logistics and give it the quantity it needed and would instruct it where the loads were to be delivered. Although Argos USA opened at 6:00 a.m. and had a time after which it would not receive loads, it did not direct Logistics what time to deliver the loads. Logistics acted as a broker and contacted available trucking companies to obtain and deliver the loads, but Argos USA never gave it qualifications for the trucks or directed its operational activity. Argos USA also did not provide Logistics with any direction or requirements as to finding drivers. When Argos USA hired Logistics to deliver sand from Aggregates, it never specified the equipment to use or which trucking company to use. In addition, on the day of the accident, Lozano was operating under his own DOT number.

Argos USA also produced evidence that Lozano never received any instruction from Argos USA and that Logistics, not Argos USA, told it where to pick up the load. Other [*8]  than instructing Lozano where to unload at its plant, Argos USA did not tell Logistics how to do its job or give it any instruction regarding the maintenance of its vehicles. When Logistics contacted Lozano to deliver loads for Argos USA, it told Lozano the day to deliver the loads, but did not tell it the time of day to deliver them. It was Lozano’s option on how many loads it would accept to deliver in a day. Argos USA’s evidence also showed that it did not have a written contract with Logistics and that it never had a contract with Lozano. Lozano’s representative also testified that it did not know if it would have put side underride guards on its trailer if Argos USA had requested it do so, since Argos USA had no control over its vehicles.

In addition, Argos produced evidence that it hired Logistics as a broker to engage trucking companies to haul sand and aggregate it had purchased from Aggregates in Conroe, Texas, to its plant in Tomball, Texas. It also produced undisputed evidence that, on the date of the accident, Logistics hired Lozano to haul the sand from Aggregates to Argos USA’s plant in Tomball.

HN3 “Generally, an employer has no duty to ensure that an independent contractor [*9]  performs its work in a safe manner.” Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006) (citing Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001)). However, “if the work itself involves a nondelegable duty, whether inherently dangerous or statutorily prescribed,” the employer is “generally held liable for an independent contractor’s tortious acts.” Id. at 795.

HN4 The FMCSR creates a nondelegable duty for “motor carriers authorized to operate by the Federal Motor Carrier Safety Administration.” Rodriguez v. Panther Expedited Servs., Inc., No. 04-17-00291-CV, 2018 Tex. App. LEXIS 5857, 2018 WL 3622066, at *6 (Tex. App.—San Antonio July 31, 2018, pet. denied) (mem. op.) (citing Morris v. JTM Materials, Inc., 78 S.W.3d 28, 38 (Tex. App.—Fort Worth 2002, no pet.); 49 C.F.R. § 376.1). “[B]ecause under the FMCSR interstate motor carriers have a legal right and duty to control leased vehicles that are operated for their benefit, the regulations create a statutory employee relationship between the employees of the owner-lessors and the lessee-carriers.” Id. (citing Motloch v. Albuquerque Tortilla Co., 454 S.W.3d 30, 37 (Tex. App.—Eastland 2014, no pet.)). As a result, “an interstate motor carrier is vicariously liable as a matter of law under the FMCSR for the negligence of its statutory employee drivers.” Id. (citing Morris, 78 S.W.3d at 39).

HN5 Nevertheless, “the Texas Supreme Court has held that when analyzing whether a defendant is a motor carrier, a court must focus on the specific transaction at issue, not merely whether a defendant is certified as a motor carrier.” Id. (citing Gonzalez v. Ramirez, 463 S.W.3d 499, 506 (Tex. 2015) (per curiam) (citing Camp v. TNT Logistics Corp., 553 F.3d 502, 507 (7th Cir. 2009); Harris v. Velichkov, 860 F.Supp.2d 970, 979 (D. Neb. 2012), aff’d, Harris v. FedEx Nat’l LTL, 760 F.3d 780 (8th Cir. 2014))). This means that “possession of a motor carrier license is [*10]  not determinative of the applicability of the regulations; rather, the critical inquiry is what capacity the defendant was acting during the transaction or incident.” Id. (citing Camp, 553 F.3d at 507). “Federal courts have specifically held that shippers who engage independent contractors to transport goods are not subject to the FMCSR.” Id. (citing Harris, 860 F.Supp.2d at 979; Caballero v. Archer, Civil Action No. SA-04-CA-561-OG, 2007 U.S. Dist. LEXIS 12271, 2007 WL 628755, at *4 (W.D. Tex. Feb. 1, 2007) (order)).

In its traditional motion for summary judgment, Argos USA asserted that the FMCSR was not applicable on two bases: (1) the transportation of the goods did not involve interstate commerce and (2) in this transaction, Argos USA was a shipper, not a motor carrier. On appeal, the Matas contend that the trial court erred in granting summary judgment on their claims based on Argos USA’s alleged duties under the FMCSR because Argos USA relied on the Texas Supreme Court’s holding in Gonzalez v. Ramirez that the FMCSR applies “only to transportation in interstate commerce,” 463 S.W.3d 499, 502 (Tex. 2015) (per curiam), and that Argos USA argued that there was no evidence that Lozano was hired to transport property across state lines. The Matas argue that, because in Gonzalez, the court was addressing a no-evidence summary judgement, and Argos USA only argued no evidence for this basis, the trial court erred in [*11]  granting summary judgment on this claim.

In their brief on appeal, the Matas do not challenge the other basis for summary judgment on the claims based on the inapplicability of the FMCSR to Argos USA, i.e., that, in this incident, it was a shipper, not a transporter. HN6 “When, as in the present case, a movant asserts multiple grounds for summary judgment, and the trial court does not specify in the order the ground on which summary judgment was granted, the appellant must negate all grounds on appeal.” Heritage Gulf Coast Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 653 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.—Houston [14th Dist.] 1998, no pet.)). “If the appellant fails to challenge all grounds on which the judgment may have been granted, the appellate court must uphold the summary judgment.” Id. (citing Lewis, 979 S.W.2d at 833; Fields v. City of Tex. City, 864 S.W.2d 66, 68 (Tex. App.—Houston [14th Dist.] 1993, writ denied)). Because the trial court could have based its summary judgment on the undisputed evidence that showed that, at the time of the accident, Argos USA was the shipper,² not a motor carrier under the FMCSR, which was not challenged on appeal, we must affirm the summary judgment on the Matas’ claims based on any duty arising under the FMCSR.

To the extent that the Matas’ brief can be construed as a challenge to the legal sufficiency of the evidence supporting the trial court’s summary judgment on these claims, the Matas [*12]  do not mention the evidence produced by Argos USA or analyze how the evidence was insufficient, do not cite any authority that would support an argument that the evidence was insufficient, and do not offer any citations to the record that would support a complaint that the evidence produced by Argos USA was insufficient. HN7 However, our appellate rules require that “[t]he brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). As a result, we conclude that any complaint that the evidence is legally insufficient is inadequately briefed and waived. See Rahman v. Foster, No. 05-16-01042-CV, 2018 Tex. App. LEXIS 1966, 2018 WL 1373890, at *2 (Tex. App.—Dallas Mar. 19, 2018, no pet.) (mem. op.); Brown v. Bank of Am., N.A., No. 01-14-00725-CV, 2015 Tex. App. LEXIS 8529, 2015 WL 4760201, at *5-6 (Tex. App.—Houston [1st Dist.] Aug. 13, 2015, no pet.) (mem. op.); Teter v. Comm’n for Lawyer Discipline, 261 S.W.3d 796, 799 (Tex. App.—Dallas 2008, no pet.); Smith v. Comm’n for Lawyer Discipline, 42 S.W.3d 362, 363-64 (Tex. App.—Houston [14th Dist.] 2001, no pet.).³

B. Argos USA’s Liability Under the Texas Transportation Code

In Gonzalez, the Texas Supreme Court also considered whether a shipper can be liable as a motor carrier under the Texas Transportation Code and its accompanying regulations. The court noted that “Texas has adopted many—but not all—parts of the Federal Regulations, as well as their federal interpretations.” Gonzalez, 463 S.W.3d at 503 (citing 37 Tex. Admin. Code § 4.11(a), (b)(3)).⁴ HN8 “The Texas Regulations apply to ‘commercial motor vehicles’ and hold ‘motor carriers’ responsible for their ’employees.'” Id. (citing 37 Tex. Admin. Code § 4.11(a); 49 C.F.R. §§ 387.1, 390.3(a), 390.11, 391.1, 396.1). “Texas law defines [*13]  ‘motor carrier’ in pertinent part as ‘an individual . . . or other legal entity that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo.'” Id. (quoting Tex. Transp. Code Ann. § 643.001(6); 37 Tex. Admin. Code § 4.11(b)(1)).

HN10 “In analyzing whether a defendant is a motor carrier, we focus on the specific transaction at issue.” Id. at 504 (citing Camp, 553 F.3d at 507; Velichkov, 860 F.Supp.2d at 979). Thus, an individual or legal entity is a “motor carrier” (and therefore responsible for its “employees”) if it “‘control[led], operate[d], or direct[ed]’ the operation of the truck” during the transaction or incident. Id. (quoting Tex. Transp. Code Ann. § 643.001(6)). At the same time, an entity that instructs the transporter of goods where to pick up and deliver the goods, and that does not control, operate, or direct the operation of the truck, acts as a shipper, not a motor carrier, and is not liable for the torts of the transporter. See id. at 505-06.

In their first issue, the Matas also challenge the trial court’s summary judgment on their claims based on liability under the Texas Transportation Code. The Matas assert that the trial court erred because Argos USA relied on Gonzalez, a no-evidence summary judgment case, and included a statement in its argument that there was no evidence that it controlled, operated, or [*14]  directed the operation of Lozano’s truck. However, the Matas do not explain how reliance on the law governing the liability of motor carriers and non-liability of shippers under the Texas Transportation Code as set forth in Gonzalez is improper in a traditional summary judgment motion, and they cite no authority holding that it is improper. Further, in their brief, the Matas do not mention any of the evidence produced by Argos USA in support of its summary judgment motion, and they ignore Argos USA’s argument in its motion that it was not acting as a motor carrier at the time of the accident, but as a shipper, and therefore was not liable under the Texas Transportation Code and its regulations. Finally, Argos USA produced evidence that it did not control, operate, or direct either Logistics or the operation of Lozano’s truck and that, at the time of the accident, it was a shipper. The Matas fail to explain how the trial court erred in granting the traditional motion for summary judgment simply because Argos USA also pointed out that there was no evidence to the contrary. The Matas also do not cite any authority supporting an argument that it would be error to grant summary judgment under these [*15]  circumstances.

To the extent that the Matas’ brief can be construed as a challenge to the legal sufficiency of the evidence supporting the trial court’s summary judgment on these claims, the Matas do not mention the evidence produced by Argos USA or analyze how the evidence was insufficient, do not cite any authority that would support an argument that the evidence was insufficient, and offer no record citations that would support a complaint that the evidence produced by Argos USA was insufficient. As a result, we conclude that any complaint that the evidence is legally insufficient is inadequately briefed and waived.⁵ See Tex. R. App. P. 38.1(i); Rahman, 2018 Tex. App. LEXIS 1966, 2018 WL 1373890, at *2; Brown, 2015 Tex. App. LEXIS 8529, 2015 WL 4760201, at *5-6; Teter, 261 S.W.3d at 799; Smith, 42 S.W.3d at 363-64.

For the reasons stated, we find that the trial court did not err in granting Argos USA’s summary judgment on the Matas’ claims based on liability under the FMCSR and the Texas Transportation Code. We, therefore, overrule the Matas’ first issue.

C. Argos USA’s Liability Under the Common Law

HN11 As stated earlier, an employer generally “has no duty to ensure that an independent contractor performs its work in a safe manner.” Fifth Club, Inc., 196 S.W.3d at 791. Even so, it “can be held vicariously liable for its independent contractor’s actions if the owner retains some control over the manner in [*16]  which the contractor performs the work that causes the damage.” Gonzalez, 463 S.W.3d at 506 (citing Fifth Club, Inc., 196 S.W.3d at 791). But an employer “‘can direct when and where an independent contractor does the work and can request information and reports about the work’ without assuming vicarious liability.” Id. (quoting Fifth Club, Inc., 196 S.W.3d at 792).

HN12 “An agent is one who is authorized by a person or entity to transact business or manage some affair for the person or entity.” Coleman v. Klockner & Co. AG, 180 S.W.3d 577, 588 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing Townsend v. Univ. Hospital-University of Colo., 83 S.W.3d 913, 921 (Tex. App.—Texarkana 2002, pet. denied)). “The critical element of an agency relationship is the right to control, and the principal must have control of both the means and details of the process by which the agent is to accomplish his task in order for an agency relationship to exist.” Id. (citing Townsend, 83 S.W.3d at 921). “Absent proof of the right to control the means and details of the work performed, only an independent contractor relationship is established.” Id. (citing Happy Indus. Corp. v. Am. Specialties, Inc., 983 S.W.2d 844, 852 (Tex. App.—Corpus Christi 1998, pet. dism’d w.o.j.)).⁶

In their second issue, the Matas assert that the trial court erred in granting summary judgment on their common-law claims based on duty, agency, and negligent hiring because Argos USA relied on Gonzalez, a no-evidence summary judgment case, and included a statement in its argument that there was no evidence that it had any control over the performance of the work of Logistics [*17]  or Lozano. The Matas’ brief ignores the extensive argument by Argos USA in its summary judgment motion that the evidence showed that it did not control or have a right to control the means and details of the work of Logistics or Lozano and its reliance on authorities other than Gonzalez. In fact, in this portion of the summary judgment motion, Argos USA did not rely on Gonzalez. The Matas also do not mention in their brief any of the evidence produced by Argos USA in support of its summary judgment motion. Finally, the Matas fail to explain how the trial court erred in granting the traditional summary judgment when Argos USA produced evidence that it did not control and did not have the right to control the means and details of the work of either Logistics or Lozano, simply because Argos USA also pointed out that there was no evidence to the contrary. The Matas also do not cite authority supporting an argument that it would be error to grant summary judgment under these circumstances.

To the extent that the Matas’ brief can be construed as a challenge to the legal sufficiency of the evidence supporting the trial court’s summary judgment on these claims, the Matas do not mention the evidence produced [*18]  by Argos USA or analyze how the evidence was insufficient, do not cite any authority that would support an argument that the evidence was insufficient, and do not make any citations to the record that would support a complaint that the evidence produced by Argos USA was insufficient. As a result, we conclude that any complaint that the evidence is legally insufficient is inadequately briefed and waived.⁷ See Tex. R. App. P. 38.1(i); Rahman, 2018 Tex. App. LEXIS 1966, 2018 WL 1373890, at *2; Brown, 2015 Tex. App. LEXIS 8529, 2015 WL 4760201, at *5-6; Teter, 261 S.W.3d at 799; Smith, 42 S.W.3d at 363-64.

Since the Matas’ second issue has not shown any trial court error, we overrule it.

In their third issue, the Matas assert that summary judgment on their common-law claims was improper because there were genuine issues of material fact that preclude summary judgment. The Matas point to the following evidence:

1. Argos USA retained Logistics to obtain trucks and drivers since 2013 to deliver raw materials, sometimes as often as eight to ten deliveries per day.⁸

2. Argos USA’s own safety policies set forth in a document entitled “Road Safety Best Practices Guideline” regarding the hiring of contractors (a) acknowledged the safety risks inherent in hiring contactors, (b) required contractors to comply with pre-selection requirements, and (c) required contractors hired for off-site [*19]  transportation to have a safety management process for road safety that included that its vehicles pass inspections and that it repair any found defects.

3. The testimony of Jesse Belmon, Argos USA’s safety representative that (a) Argos USA had not adopted the safety standards for contractors, (b) that he had not addressed risks regarding contractors, (c) that Argos USA had not applied the road safety elements in pre-selecting contractors, (d) that he did not know if Lozano had a road safety policy, and (e) that he did not know whether Argos USA had a system to find and repair defects in contractor’s vehicles.⁹

4. Testimony that Argos USA did not require an application from Logistics.

The Matas argue that, because there was evidence that Argos USA recognized the risk of hiring outside contractors but did not follow its own safety policies in hiring them, this was sufficient to create a genuine issue of material fact as to whether Argos USA was negligent and grossly negligent.

HN13 “A legal duty must exist before a defendant can be liable for negligence.” Entex, A Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 4 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (citing Reeder v. Daniel, 61 S.W.3d 359, 364 (Tex. 2001)). “Whether a duty exists is a question of law for the court to decide from the facts surrounding the occurrence in question.” Id. [*20]  (citing Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999)). A company’s internal policies, taken alone, do not establish the standard of care. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2004). Likewise, a company’s internal policies or procedures “do not create a negligence duty where none would otherwise exist.” Entex, 94 S.W.3d at 10 (citing Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 291-92 (Tex. App.—Waco 1997, writ denied); Estate of Catlin v. Gen. Motors Corp., 936 S.W.2d 447, 451 (Tex. App.—Houston [14th Dist.] 1996, no writ)).

For that reason, even assuming that the “Road Safety Best Practices Guideline” is properly before us,¹⁰ it is not sufficient by itself to create a duty on the part of Argos USA toward the Matas. Nevertheless, the Matas argue that the affidavits of their experts established that duty, the standard of care, and Argos USA’s breach of duty. The Matas cite us to the entire initial affidavit of its expert, Brian K. Jones, consisting of approximately eighteen pages, and to Jones’s entire supplemental affidavit with its attachments, consisting of almost 300 pages, without identifying which pages contain the relevant portions. We have reviewed Jones’s initial affidavit and have determined that it does not mention Argos USA at all and expresses no opinion as to its duty, the applicable standard of care, or any breach of duty by Argos USA. Our review of Jones’s supplemental affidavit reveals that it quotes at length from the “Road Safety Best Practices Guideline,” but [*21]  only expresses the opinion that Argos USA was in violation of its own policies and procedures and that it failed to comply with the objective stated in the policies. Jones does not express an opinion regarding Argos USA’s duty, the standard of care, or Argos USA’s breach of any duty.

Even indulging every reasonable inference in favor of the Matas, this evidence only shows that Argos USA may have had internal safety policies regarding the hiring of contractors that it failed to follow. Because a company’s internal safety policies do not establish a standard of care or duty, this evidence is insufficient to raise a genuine issue of material fact of any duty on the part of Argos USA. HN14 Without a legal duty, a claim for negligence fails. See Fulgham, 154 S.W.3d at 92-93; Entex, 94 S.W.3d at 9-11. Likewise, without a legal duty there can be no gross negligence. See Shell Oil v. Humphrey, 880 S.W.2d 170, 174 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (a finding of gross negligence requires a finding that the defendant owed a duty of care to the plaintiff). We, therefore, overrule the Matas’ third issue.

Finally, although the Matas do not designate it as one of their issues on appeal, in their discussion of the first two issues, the Matas argue that the trial court erred in granting summary judgment on all their common-law [*22]  claims because Argos USA did not specifically identify each of the claims in its motion for summary judgment. The Matas argue that, in their live petition, they asserted the following claims that were not addressed in the motion for summary judgment:

1. Argos USA “had a common law duty to keep the roads safe for the general public”;

2. Argos USA “voluntarily assumed a duty to Lozano to require a safe truck”;

3. Argos USA should have warned Lozano to “install side underride guards in or about 2014”;

4. Argos USA owed a duty to the Matas to “make the trailer safer by equipping it with automatic brake adjusters, working brake lights and side underride guards”; and

5. Argos USA had a non-delegable duty to direct “Lozano truck to operate in a safe condition while it was on their property.”

HN15 As the Matas point out, “[s]ummary judgments . . . may only be granted upon grounds expressly asserted in the summary judgment motion.” G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam) (citing Tex. R. Civ. P. 166a(c)). Further, “[g]ranting a summary judgment on a claim not addressed in the summary judgment motion . . . is, as a general rule, reversible error.” Id. (citing Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (per curiam)).

HN16 However, in G & H Towing, the court also recognized that the harmless error rule applies to [*23]  summary judgments. Id. For that reason, “[a]lthough a trial court errs in granting a summary judgment on a cause of action not expressly presented by written motion, . . . the error is harmless when the omitted cause of action is precluded as a matter of law by other grounds raised in the case.” Id. at 297-98 (citing Withrow v. State Farm Lloyds, 990 S.W.2d 432, 437-38 (Tex. App.—Texarkana 1999, pet. denied)). Thus, a summary judgment may be affirmed even though the “motion omitted one of multiple causes of action, when the omitted ground was intertwined with, and precluded by, a ground addressed in the motion.” Id. at 297 (citing Zarzosa v. Flynn, 266 S.W.3d 614, 621 (Tex. App.—El Paso 2008, no pet.); Withrow, 990 S.W.2d at 437-38; Vogel v. Travelers Indem. Co., 966 S.W.2d 748, 754-55 (Tex. App.—San Antonio 1998, no pet.); Cissne v. Robertson, 782 S.W.2d 912, 918 (Tex. App.—Dallas 1989, writ denied)).

A review of the Matas’ live petition shows that their assertion of each of the omitted causes of action was based on their allegations that Argos USA had the right to control the safety features of Lozano’s truck, that Argos USA had a duty because of its agency relationship with Logistics, or that Argos USA had non-delegable duties under the FMCSR and the Texas Transportation Code. As a result, each of these causes of action was intertwined with, and precluded by, grounds asserted in the motion upon which the trial court granted summary judgment. Id. For that reason, we find that any error by the trial court in granting summary judgment on the causes of action [*24]  omitted from the summary judgment motion was harmless. Id. at 298.

IV. Conclusion

For the reasons stated, we affirm the trial court’s summary judgment and dismissal of all the Matas’ claims against Argos USA.

Scott E. Stevens

Justice

Date Submitted: February 9, 2022

Date Decided: April 22, 2022

End of Document

^* Jack Carter, Justice, Retired, Sitting by Assignment

¹ Originally appealed to the Fourteenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001. We are unaware of any conflict between precedent of the Fourteenth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.

² In its summary judgment motion addressing this ground, Argos USA did not make a no-evidence argument, but, rather, it argued that the evidence showed that it was a shipper. In their response to the motion for summary judgment, the Matas did not address this issue.

³ Even if the Matas had properly challenged the sufficiency of the evidence and challenged Argos USA’s ground that the FMCSR did not apply to it because at the time of the accident it was a shipper, not a motor carrier, we would find that Argos USA produced sufficient evidence to entitle it to summary judgment on that ground.

⁴ HN9[] “Accordingly, we look to federal case law for guidance.” Gonzalez, 463 S.W.3d at 503 n.10 (citing R.R. St. & Co. v. Pilgrim Enters., Inc., 166 S.W.3d 232, 241 (Tex. 2005)).

⁵ Even if the Matas had properly challenged the sufficiency of the evidence supporting the trial court’s summary judgment on its claims based on Argos USA’s alleged liability under the Texas Transportation Code, we would find that Argos USA produced sufficient evidence that it did not control, operate, or direct either Logistics or the operation of Lozano’s truck; that, at the time of the accident, it was a shipper, not a motor carrier; and that, as a matter of law, it was not liable under the Texas Transportation Code.

⁶ In their live petition, the Matas alleged that Logistics was the agent of Argos USA, that Logistics as an agent of Argos USA was negligent in hiring and retaining Lozano, and that Argos USA was liable for the actions of its agent. They also alleged a cause of action for the negligent hiring of Lozano based on its alleged non-delegable duties under the FMCSR and the Texas Transportation Code that we have previously discussed. The Matas also allege liability under Sections 402, 411, 424, and 427 for the negligent hiring of Lozano. However, because Logistics hired Lozano, not Argos USA, this theory of liability also appears to rest on either Logistics being the agent of Argos USA or Argos USA being a motor carrier under the FMCSR and the Texas Transportation Code in regard to the accident.

⁷ Even if the Matas had properly challenged the sufficiency of the evidence supporting the trial court’s summary judgment on its common-law claims, we would find that Argos USA produced sufficient evidence that Logistics was its independent contractor, that Lozano was Logistics’s independent contractor, and that Argos USA did not have actual control or the right to control Logistics’s or Lozano’s performance of their work. For that reason, we would find that, as a matter of law, Argos USA was not liable to the Matas for the torts of Logistics or Lozano and that it owed no duty to the Matas to ensure that Logistics and Lozano performed their work safely.

⁸ Although the Matas point to this evidence, they fail to analyze how this fact would create any liability for Argos USA for the torts of Logistics.

⁹ Belmon also testified that he had never seen the “Road Safety Best Practices Guideline” before his deposition. By affidavit, he also testified that the document was not a manual in use by Argos USA and that the manual apparently originated with an Argos entity in Colombia.

¹⁰ In the trial court, Argos USA objected to the admission of this document because it lacked authentication. The trial court did not rule on that objection. On appeal, the parties dispute whether Argos USA’s objection to the Matas’ proffered authentication was an objection as to its form, which is waived if not ruled on by the trial court, or an objection to its substance, which is not waived by the lack of a trial court ruling. See Wakefield v. Wells Fargo Bank, N.A., No. 14-12-00686-CV, 2013 Tex. App. LEXIS 14018, 2013 WL 6047031, at *2 (Tex. App.—Houston [14th Dist.] Nov. 14, 2013, no pet.) (mem. op.). Because the result will be the same whether we consider the evidence or not, we need not decide the nature of the objection.