Opinion
SA-21-CV-904-FB (HJB)
01-02-2024
DYLAN RAINES, Plaintiff, v. GT EXPRESS, INC., and LAURAH M. WILKINSON Defendants.
HENRY J. BEMPORAD, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE FRED BIERY, UNITED STATES DISTRICT JUDGE
This Report and Recommendation concerns Defendants' Motion for Summary Judgment on Plaintiff's Gross Negligence Claims Against GT Express, Inc. (Docket Entry 65); Motion for Summary Judgment on Plaintiff's Direct Negligence Claims Against GT Express, Inc. (Docket Entry 66); and Motion for Summary Judgment on Plaintiff's Gross Negligence Claims Against Laurah M. Wilkinson (Docket Entry 67). Pretrial matters in this case have been referred to the undersigned for consideration. (Docket Entry 4.)
For the reasons set out below, I recommend that the Court GRANT Defendants' Motion for Summary Judgment on Plaintiff's Gross Negligence Claims Against GT Express, Inc. (Docket Entry 65) and Defendants' Motion for Summary Judgment on Plaintiff's Direct Negligence Claims Against GT Express, Inc. (Docket Entry 66), and that it DENY Defendants' Motion for Summary Judgment on Plaintiff's Gross Negligence Claims Against Laurah M. Wilkinson (Docket Entry 67).
I. Jurisdiction.
This lawsuit was originally filed in state court, but was removed to this Court on the basis of diversity, pursuant to 28 U.S.C. §§ 1332 and 1441. The undersigned has authority to issue this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Background.
A. The Accident.
This case arises out of an automobile accident that occurred on August 3, 2020, on Farm-to-Market Road 1338, a two-lane, two-way road in Kerr County, Texas. (Docket Entry 65-2, at 12-3.) At the time of the collision, Defendant Laurah Wilkinson was traveling southbound in a tractor-trailer owned by Defendant GT Express, Inc. (“GT”). (Id. at 3.) Plaintiff Dylan Raines was traveling northbound in the opposite lane. (Id.) The posted speed limit for most of the road was 55 miles per hour. (Docket Entry 65-3.) The road, however, was wet with rain. (See Docket Entry 58.)
The accident occurred at a bend in a winding section of road. (See id.) Before arriving at the winding section of road, Wilkinson passed a yellow, diamond-shaped winding road sign warning her to reduce her speed to 25 miles per hour. (See id.) Wilkinson entered the first bend at a speed of approximately 42 miles per hour before losing control of her tractor trailer and entering Raines's northbound lane of traffic. (See id.; Docket Entry 65-4, at 8.) Raines attempted to avoid the collision by driving onto the shoulder of the road, but Wilkinson's tractor-trailer struck the driver-side of his SUV, causing it to roll once before coming to a rest upright. (See Docket Entry 58.) Wilkinson was cited for causing the crash as a result of driving at an unsafe speed. (Docket Entry 65-2, at 3.)
B. Wilkinson's Applications, Employment, and Training.
At the time of the accident, Wilkinson had been employed by GT for approximately 10 months. (See Docket Entry 70-1, at 806.) She first applied for a driver position at GT on April 23, 2019, indicating in her application that she had a Commercial Driver's License (“CDL”), that she had not been in an accident in the past five years, and that she had never had her license suspended. (Id. at 261, 267-69.) GT reviewed a report on Wilkinson provided by the Federal Motor Carrier Safety Administration (“FMCSA”), which found that she had been involved in no accidents and had not been cited for any violations in the past three years. (Docket Entry 65-8.)GT also requested a motor vehicle records report from HireRight, a third-party service provider. (Docket Entry 65-5, at 1.) HireRight provided the report to GT on April 25, 2019, noting that Wilkinson indeed had a valid CDL, but that Wilkinson had once had her license suspended for failing to make a court appearance. (Id. at 2-3.)
For every new driver a motor carrier hires, they must first “obtain that driver's motor vehicle record covering that driver's prior 3-year driving history.” 49 C.F.R. § 391.23 (2023).
Wilkinson was not hired. However, she applied a second time, on September 6, 2019. (Docket Entry 70-1 at 282.) Wilkinson lied on her second application as well, regarding whether her license had ever been suspended. (Id. at 280.) She was hired shortly thereafter, on October 2, 2019. (Id. at 967.)
Wilkinson listed two employers on her applications for whom she had previously worked as a commercial tractor-trailer driver. (Id. at 262-64, 276-77.) Wilkinson's first trucking job was a brief, two-month stint with C.R. England, from September 10, 2018, to November 9, 2018. (Docket Entry 65-9, at 2.) She left C.R. England for another driving position at Western Express, where she remained until leaving to work for GT on October 2, 2019. (Docket Entry 65-10, at 1.) When GT reached out to these employers for information, both confirmed that Wilkinson had not been terminated and that she had no accidents during her tenure in their employ. (Docket Entries 65-9-10.) Before working for C.R. England, Wilkinson received eight weeks of training from Premier, a truck driving school. (Docket Entry 65-7, at 2.) With C.R. England, Wilkinson received another eight-and-a-half weeks of training, including four-and-a-half weeks of “over-the-road driving experience.” (Id. at 3.) Then, with Western Express, Wilkinson received another five weeks of training, including four weeks of “driving with . . . [a] trainer.” (Id. at 4-5.) Wilkinson did not receive any additional training from GT, which instead administered “a driver's test” to confirm that she already knew how to operate a Commercial Motor Vehicle (“CMV”). (Docket Entry 69-1, at 876.)
C. Data from the Tractor-Trailer at the Time of the Accident.
The tractor-trailer that GT entrusted to Wilkinson was equipped with Lytx and Omnitracs devices. (Docket Entry 69-1, at 55-59.) The Lytx device “can identify risky driving behaviors such as texting, failure to wear a seatbelt, critical and following distance, lane departure, or rolling stops.” (Id. at 55.) It includes a forward-facing camera to record activity on the road and a rearfacing camera to record activity within the cabin of the vehicle. (Id. at 56.) The road-facing Lytx camera captured footage of the crash (Docket Entry 58), but GT failed to produce the rear-facing video and audio footage. (Docket Entries 69-1, at 58; 63, at 1-2.) On the date of the accident, Wilkinson had taped a fortune cookie message over the rear facing camera, such that the Lytx device could not record any of the activity happening within the cabin. (Docket Entry 69-1, at 56.)
The Omnitracs device tracks “[n]ear real-time vehicle location” and “[d]river's speed....” (Id. at 57.) This data is “uploaded, automatically, to a web-based Cloud application for real-time visibility,” such that GT “would have had immediate access to the data....” (Id.) This Omnitracs data was also never produced by GT. (See id. at 57-58; 63, at 1-2.)
D. Procedural Background.
Raines filed suit on August 20, 2021, in the 198th District Court, in Kerr County, Texas. (Docket Entries 1-4; 1-5, at 1.) Defendants subsequently removed the case to this Court. (Docket Entry 1.) Raines asserts claims of ordinary and gross negligence against Wilkinson. (Docket Entry 1-5, at 9-10; 15-16.) As to GT, Raines claims it is vicariously liable for Wilkinson's negligence, but also that it was grossly negligent for hiring and retaining Wilkinson, failing to train or supervise her, and for entrusting her with one of its 18-wheelers. (Id. at 11-16.)
Defendants filed three motions for summary judgment. As to Wilkinson, they moved for summary judgment on Plaintiff's gross negligence claims. (Docket Entry 67.) As to GT, Defendants filed separate motions as to Raine's gross negligence claims (Docket Entry 65) and as to his direct negligence claims (Docket Entry 66). Raines responded to Defendants' arguments (Docket Entries 69 and 70), and Defendants replied (Docket Entry 71).
III. Summary Judgment Standard.
Summary judgment is warranted “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(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Allen v. United States Postal Serv., 63 F.4th 292, 300 (5th Cir. 2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A disputed fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 447 U.S. at 248). In making this assessment, the Court “is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party.” Air Evac EMS, Inc. v. Sullivan, 331 F.Supp.3d 650, 657 (W.D. Tex. 2018) (citing Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
The party moving for summary judgment bears the initial burden of “informing the court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party carries its burden, “the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.” Mary Kay, Inc. v. Weber, 601 F.Supp.2d 839, 851 (N.D. Tex. 2009) (citing Celotex Corp., 477 U.S. at 323-24). “The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence.” Arthur v. Liberty Mut. Pers. Ins. Co., No. SA-21-CV-00602-FB, 2022 WL 17824520, at *1 (W.D. Tex. Dec. 20, 2022) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)), report and recommendation adopted, No. SA-21-CA-602-FB, 2023 WL 2557392 (W.D. Tex. Feb. 3, 2023).
IV. Discussion.
This case involves the interplay of vicarious liability and ordinary and gross negligence claims under Texas law. For the reasons set out below, the ordinary negligence claims against GT cannot go forward because GT has already admitted vicariously liable for Wilkinson's negligence. Questions of gross negligence, however, must be analyzed more carefully.
A. Ordinary Negligence Claims Against GT.
“In cases involving ordinary negligence, direct causes of action which impose liability on an employer for its own negligence,” e.g., negligent hiring, training, retention, supervision, or entrustment, “and causes of action which impose liability on an employer for its employee's negligence (vicarious liability) are ‘mutually exclusive modes of recovery.'” Kuss v. Ulmer, No. SA-19-CV-629-JKP, 2021 WL 1433062, at *5 (W.D. Tex. Mar. 17, 2021) (quoting Rosell v. Cent. W. Motor Stages, Inc., 80 S.W.3d 643, 654 (Tex. App-Dallas 2002, pet. denied)). In this case, GT admitted that Wilkinson was in the course and scope of her employment when the accident occurred and, thus, that it is vicariously liable for Wilkinson's negligence. (Docket Entry 8, at 3.) Because vicarious liability and ordinary negligence are mutually exclusive theories of recovery against an employer, Raines is precluded from recovering from GT for his claims of ordinary negligent hiring, retention, training, supervision, and entrustment unless they rise to the level of gross negligence. See Part IV(b)(i), infra.
Accordingly, Defendants' motion for summary judgment as to the ordinary negligence claims against GT (see Docket Entry 66) should be granted.
B. Gross Negligence.
Gross negligence has both an objective and a subjective component. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). To prevail on a gross negligence claim, a plaintiff must prove both (1) that the defendant's act or omission, when viewed objectively from the defendant's standpoint, involved “an extreme degree of risk considering the probability and magnitude of the potential harm to others” and (2) that the defendant had “actual, subjective awareness of the risk involved, but nevertheless proceed[ed] with conscious indifference to the rights, safety, or welfare of others.” Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11)).
An ”extreme risk” sufficient to satisfy the objective prong “is not a remote possibility or even a high probability of a minor harm, but rather the likelihood of the plaintiff's serious injury.” Waldrip, 380 S.W.3d at 137 (citations omitted). Although Texas courts “recognize that there is ‘no exact line' that can be drawn between ordinary and gross negligence, in general, the situation must be ‘highly dangerous.'” Phillips v. Super Servs. Holdings, LLC, 189 F.Supp.3d 640, 655 (S.D. Tex. 2016) (collecting cases).
“The subjective prong, in turn, requires that the defendant knew about the risk, but that the defendant's acts or omissions demonstrated indifference to the consequences of his acts.” Id. (citations omitted). “An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent.” Phillips, 189 F.Supp.3d at 654. And “a party cannot be liable for gross negligence when it actually and subjectively believes that circumstances pose no risk to the injured party, even if they are wrong.” Waldrip, 380 S.W.3d at 141 (citation omitted). A defendant's subjective mental state can be proven by direct or circumstantial evidence. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994).
Because “[g]ross negligence must be proven by ‘clear and convincing evidence' at trial” Columbia Med. Ctr. Of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008), the question at the summary judgment stage is whether the plaintiff “has evidence that would allow a reasonable juror to find, by clear and convincing evidence, gross negligence.” Hanan v. Crete Carrier Corp., No. 3:19-CV-149-B, 2020 WL 42269, at *6 (N.D. Tex. Jan. 3, 2020) (citation omitted). “Clear and convincing” means “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Waldrip, 380 S.W.3d at 137 (quoting TEX. CIV. PRAC. & REM. CODE § 41.001(2)).
1. Gross negligence claims against GT.
Where gross negligence is alleged against a vicariously-liable employer, “the direct claims against the employer (i.e., negligent hiring, negligent supervision, etc.) are treated as independent and separate grounds of recovery against the employer for purposes of punitive damages.” Williams v. McCollister, 671 F.Supp.2d 884, 888-89 (S.D. Tex. 2009) (citing Rosell, 80 S.W.3d at 654; Estate of Arrington v Fields, 578 S.W.2d 173, 178-79 (Tex. App.-Tyler 1979, writ ref'd n.r.e.)). Accordingly, this Report and Recommendation considers whether Plaintiff has presented sufficient evidence for the jury to find, by clear and convincing evidence, that GT was grossly negligent with respect to its hiring, retaining, training, supervising, or entrusting a vehicle to Wilkinson.
i. Negligent entrustment.
There are five elements to a negligent entrustment claim: (1) the defendant entrusted the vehicle to the driver; (2) the driver was unlicensed, incompetent, or reckless; (3) at the time of entrustment, the defendant knew or should have known that the driver was unlicensed, incompetent, or reckless; (4) the driver was negligent on the occasion in question; and (5) the driver's negligence proximately caused the accident. Phillips, 189 F.Supp.3d at 651-52 (citing Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007)). Only the second and third elements are disputed here.
Defendants argue that GT was not grossly negligent in entrusting Wilkinson with one of its tractor-trailers because Wilkinson had a CDL and GT neither knew nor had reason to know that she was an incompetent or reckless driver. (Docket Entry 65, at 7.) In support of their position, Defendants point out that GT reviewed Wilkinson's HireRight and FMCSA reports before hiring her, and that the reports indicated she had a valid CDL, “zero moving violations, zero speeding citations, and zero prior accidents.” (Id. at 6-7.) Defendants further argue that GT was not grossly negligent in continuing to entrust Wilkinson with one of its 18-wheelers on the date of the accident because she had been driving for GT for 10 months before the accident occurred, during which time she received “zero moving violations and zero speeding citations,” and was “involved in zero accidents.” (Id. at 7.)
Raines responds that Wilkinson had other, unreported driving-related convictions about which GT should have known. (Docket Entry 69, at 14.) He argues that these other offenses show that Wilkinson was a reckless or incompetent driver. (Id.) Raines also argues that Wilkinson's driver logs and the tractor-trailer's data-imaging report reveal that GT knew or should have known she was a habitual speeder, which demonstrates GT's gross negligence given that an investigation determined that Wilkinson caused the accident by driving at an unsafe speed. (Id. at 14-15, 20; see Docket Entry 65-2, at 3.)
Wilkinson's prior convictions. With respect to Wilkinson's unreported driving-related convictions, “in order for a prior conviction to be relevant, the offense(s) must be related to the risk posed by the employee.” Phillips, 189 F.Supp.3d at 652-53 (citing McDorman, 288 F.Supp.2d at 805-06). In other words, “where there is no evidence that a driver's past driving performance was such that a prudent person, considering the safety of others on the highways, would deny the driver access to an automobile, then the evidence is insufficient to establish incompetency or recklessness.” Id. at 653 (citing Louis Thames Chevrolet Co. v. Hathaway, 712 S.W.2d 602, 604 (Tex. App.-Houston [1st Dist.] 1986, no writ)). Thus, for example, “convictions or license suspensions for seat belt violations and other reasons unrelated to driving are insufficient.” Phillips, 189 F.Supp.3d at 653 (citing McDorman, 288 F.Supp.2d at 800, 810 n.3). Similarly, the Court must consider “the number and remoteness of the violations” in assessing whether Wilkinson was an incompetent or reckless driver when GT entrusted her with one of its vehicles. See Phillips 189 F.Supp.3d at 653 (citing Broesche v. Bullock, 427 S.W.2d 89, 93 (Tex. App.- Houston [14th Dist.] 1968, writ ref'd n.r.e.)).
Texas sets a high bar for proving recklessness or incompetence through a driver's record: there must be “convictions and violations that are related to the accident, frequent, and recent.” Phillips 189 F.Supp. 3d at 653-54 (citations omitted). “Even serious tickets such as DUIs are not indicative of a driver's recklessness or incompetence if they are remote.” Phillips, 189 F.Supp.3d at 653 (citing Batte v. Hendricks, 127 S.W.3d 790, 791 (Tex. App.-Dallas 2004, pet. denied)).
Compare Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007) (finding one ticket for driving without liability insurance and one for an accident less than three years before hire, plus one speeding ticket during employment but before the subject accident, were insufficient to create fact issue on recklessness or incompetence), with Broesche, 427 S.W.2d at 93 (finding seven citations for moving violations, one warning letter, and numerous disciplinary actions and restrictions within three-year period before accident were sufficient to establish recklessness or incompetence), and with Pesina v. Hudson, 132 S.W.3d 133, 139 (Tex. App.- Amarillo 2004, no pet.) (finding three DUIs, two collisions, and one speeding ticket during two-year period preceding accident were sufficient to raise fact issue as to driver's recklessness or incompetence).
Here, Raines argues that Wilkinson “was not even eligible for hire with GT . . . based on her unsafe lane change conviction.” (Docket Entry 69, at 17.) Raines does not identify the conviction further, or cite to the evidence attached to his brief to support this contention, but it appears that she is referring to a conviction from August 16, 2019, listed on a Driver's License Report prepared by SambaSafety at GT's request three days after the accident. (Docket Entry 6511.)Raines characterizes the offense as an “improper or erratic (unsafe) lane change,” which has a code of M42, is regarded as “serious,” and is a grounds for disqualifying a person from driving a CMV in the American Association of Motor Vehicle Administrators Code Dictionary (“ACD”). See 49 C.F.R. §§ 383.51(a)(2), (c)(3) (2021); ACD, Appendix E, at 75. However, the report described the conviction as being for “improper lane or location,” which is given the code M40 and is not regarded as a serious violation and is not a grounds for disqualifying a driver. See 49 C.F.R. § 383.51; ACD, Appendix E, at 75. Thus, while this conviction is not entirely irrelevant, it is inadequate to raise a genuine dispute that Wilkinson is an incompetent or reckless driver.
Defendants point to this report as evidence that Wilkinson had no prior accidents or violations during her ten months of employment with GT. (Docket Entry 65, at 4.)
See AAMVA-Code-Dictionary-Manual-5-2.pdf; see also Phillips, 189 F.Supp.3d at 646 (taking judicial notice of ACD, noting that “Universal codes fall within the ambit of Rule 201 [of the Federal Rules of Evidence]”).
Raines argues that Wilkinson had “multiple other driving-related convictions,” including “driving without a license, failing to stop at a red light, and driving while using a wireless phone.” (Docket Entry 69, at 14.) Raines bases these arguments on assertions made in the report of one of his experts: Roger Allen, a transportation consultant. (See Docket Entry 69-1, at 34, 49.) According to Allen, Wilkinson was convicted in 2009 and 2011 for driving without a license; in 2011 for failure to stop at a red light; and in 2013 for driving while using a cell phone. (Id. at 34.) Assuming all of this to be true, the driving-without-a-license convictions are immaterial. See Phillips, 189 F.Supp.3d at 653 (“”[C]onvictions or license suspension for seat belt violations and other reasons unrelated to driving are insufficient.”) (citing McDorman, 288 F.Supp.2d at 810 n.3). The convictions for failing to stop at a red light and for using a cell phone while driving, on the other hand, are relevant inasmuch as they pertain to unsafe operation of a vehicle. Nevertheless, these convictions are too remote to have any bearing on whether Wilkinson was an incompetent or reckless driver by the time that GT entrusted her with one its vehicles six years later. Cf. Phillips, 189 F.Supp.3d at 654 (finding that two speeding convictions-six and four years old, respectively-were “too remote and few to establish recklessness or incompetence”). Accordingly, Raines cannot establish Wilkinson's incompetence based on her prior citations.
Habitual speeding. With respect to the contention that Wilkinson was a habitual speeder, Raines produced an expert report by Jeff Martin, a “Digital Evidence Expert Witness.” (Docket Entry 69-1, at 54-60.) According to Martin, the data-imaging report of the tractor-trailer entrusted to Wilkinson shows that it “exceeded 65.24 MPH 76,057 times,” for a total of “696 hours 11 minutes and 42 seconds.” (Id. at 55.) In fact, Martin reports, “[t]he vehicle exceeded . . . 80.78 mph for 27.1 hours.” (Id.) However, Martin provides no explanation as to how he reached these conclusions. Defendants argue, moreover, that because the data-imaging report covers “the entire life” of the vehicle, it is “commingled data” and, thus, “not reliable evidence.” (Docket Entry 71, at 4.) Martin's failure to explain his methodology includes failing to explain how, if at all, he isolated the relevant information as to Wilkinson from this comingled data.
Raines also argues that a review of Wilkinson's driver logs reveals that she was a habitual speeder. (Docket Entry 69, at 6-8.) According to Raines, from “February 1, 2020[,] through August 3, 2020, Wilkinson's driver logs prove that her daily average speed exceeded 65 MPH more than 20% of her driving days, in direct violation of company policy.” (Id. at 7.) To support this contention, Raines cites Roger Allen's expert report again, as well as an expert report produced by Ricardo Palacios, an accident reconstructionist. (Id. at n.43; Docket Entry 69-1, at 14, 38.) Palacios explains that “[t]hese averages are calculated using the inputs on the logs for total driving distance and total hours driving.” (Id. at 14.) He also opines that, on the date of the accident, “Wilkinson's average speed was 70.8 MPH.” (Id.) Allen notes, in his report, that an average speed exceeding 65 miles per hour is a “direct violation of [GT's] company policy.” (Id. at 38.) Raines specifically identifies 30 days' worth of driver logs over a seven-month period, according to which Wilkinson's average speed exceeded 65 miles per hour. (Docket Entry 70-1, at 598-627.) On one such log, Wilkinson's average speed appears to have been 76.2 miles per hour; on another it appears to have been 93.7 miles per hour. (Id. at 609, 616.)
Defendants respond that, “the fact [that] a driver is driving above 65 mph is not evidence of gross negligence, or even negligence, when most interstate highways post speed limits of 75 mph.” (Docket Entry 71, at 2.) Defendants further argue that the two logs indicating average speeds of 76.2 and 93.7 miles per hour, respectively, mislabeled some hours as non-driving and, when corrected, reveal average speeds of 55.4 and 69.7 miles per hour, respectively. (Id. at 2-3.)
Finally, Raines argues that GT knew Wilkinson was a habitual speeder based not only on its access to her driver logs, but also the data generated by the Lytx and Omnitracs devices equipped to Wilkinson's tractor-trailer. (Docket Entry 69, at 15.) These devices track GPS and speed, among other things. (Id.; Docket Entry 69-1, at 55-57.) However, GT failed to preserve the data captured by these two devices, and Raines argues that a jury could reasonably infer that this “spoliated evidence” would have shown that Wilkinson was a habitual speeder. (Docket Entry 69, at 15, 20-21.)He further argues that “the daily speed averages provided by the driver logs” are not a reliable substitute for the missing Omnitracs data because “one could average 65 MPH over a ten-hour day by driving 25 MPH for five hours and 105 MPH for five hours.” (Id. at 15.)
The undersigned previously ruled that GT's failure to preserve the Omnitracs and Lytx data was unintentional, but permitted Raines to present evidence of the failure at trial and to seek to limit Defendants' cross-examination of Raines's experts “to the extent any such crossexamination is based on the absence of unpreserved data.” (Docket Entry 63, at 1-2.)
Based on the foregoing, there is some evidence in the record from which a jury could reasonably infer that GT knew or should have known that Wilkinson regularly violated its company speed policy. (See Docket Entry 70-1, at 386, 598-627.) And given the circumstances of GT's failure to preserve the Omnitracs data for Wilkinson's vehicle, a jury could also reasonably infer that the missing data would have been unfavorable to GT. But gross negligence requires clear and convincing evidence of “highly dangerous” conduct creating a “likelihood of the plaintiff's serious injury.” Waldrip, 380 S.W.3d at 137 (citations omitted); Phillips, 189 F.Supp.3d at 655 (collecting cases). Simply put, a reasonable jury could not find by clear and convincing evidence, based on the summary judgment record here, that GT was grossly negligent in entrusting one of its vehicles to Wilkinson.
ii. Hiring and retention.
“An employer owes a duty to its other employees and the general public to ascertain the qualifications and competence of the employees it hires, especially where the occupation at issue could cause hazard to others or requires skilled or experienced persons.” Phillips, 189 F.Supp.3d at 648 (citing Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App.-Fort Worth 2002, no pet.)). An employer breaches this duty “if it hires an incompetent or unfit employee whom it knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others.” Phillips, 189 F.Supp.3d at 647 (citation omitted). “The analysis of . . . incompetence or recklessness in the context of a negligent hiring claim . . . mirrors that of a negligent entrustment claim.” Sanchez v. Swift Transp. Co. of Ariz., LLC, No. 15-CV-00015-RAJ, 2016 WL 10587126, at *10 (W.D. Tex. June 14, 2016).
GT argues that it was not negligent in hiring Wilkinson-let alone grossly negligent- because it investigated her driving record for the past three years and discovered nothing to suggest that hiring Wilkinson would expose the public to an unreasonable risk of harm. (Docket Entry 71, at 5.) GT points out that a background check of three years is precisely what is required by regulation. (Id. citing 49 C.F.R. § 391.23 (2023) (requiring motor carriers to obtain a prospective employee's “prior 3-year driving history” from their motor vehicle records before hiring them)). GT also notes that Wilkinson “drove for GT . . . for 10 months incident-free before the subject accident.” (Docket Entry 71, at 4.)
Raines responds that GT knew Wilkinson lied on her job application about having her license suspended, and therefore should have conducted a more thorough investigation of her driving record before hiring her. (Docket Entry 69, at 17, 19.) Raines argues that a more thorough investigation would have revealed the convictions which the Court already discussed in the preceding section. (Id. at 17.) However, as in negligent entrustment cases, “in order for a prior conviction to be relevant, the offense(s) must be related to the risk posed by the employee.” Phillips, 189 F.Supp.3d at 652-53 (citingMcDorman, 288 F.Supp.2d at 805-06); see TXI Transp. Co. v. Huges, 306 S.W.3d 230, 240 (Tex. 2010) (“The plaintiff must also prove that the risk that caused the entrustment or hiring to be negligent caused the accident at issue.”). Moreover, convictions that are too few or too remote will also fail to demonstrate an employee's incompetence or lack of fitness for the job. Phillips, 189 F.Supp.3d at 653. For the reasons discussed in the preceding section, Wilkinson's prior convictions, even if discovered, would not have been relevant to whether Wilkinson was incompetent or unfit for purposes of a negligent hiring claim.
Raines also argues that GT was grossly negligent in retaining Wilkinson after discovering, through her driver logs and through the vehicle's Lytx and Omnitracs data, that she was a habitual speeder. (Docket Entry 69, at 18-19.) However, as discussed in the preceding section, there is little evidence that Wilkinson habitually exceeded the legal, posted speed limits while driving-as opposed to GT's 65-mile-per-hour policy. And what little evidence there is could not enable a reasonable jury to find, by clear and convincing evidence, that GT retained an incompetent or reckless employee, as required to prevail on a gross negligence claim. See Anderson, 477 U.S. at 255.
Indeed, even repeated accidents while working for the employer may not suffice. See, e.g., Connell West Trucking Co., Inc. v. Estes Express Lines, No. EP-20-CV-312-KC, 2022 WL 5568428, at *4 (W.D. Tex. June 28, 2022) (finding insufficient evidence of incompetence to create genuine dispute as to negligent retention where driver “was involved in only three accidents . . . [w]hile working for [defendant]”).
Thus, based on the summary judgment record presently before the Court, a reasonable jury could not find by clear and convincing evidence that GT was grossly negligent in its decisions to hire and retain Wilkinson as an employee.
iii. Training and supervision
“Texas appellate courts hold that the elements of an action for negligently [training] an employee are: (1) the employer owed the plaintiff a legal duty to [train/supervise]; (2) the employer breached that duty; and (3) the breach proximately caused the plaintiff's injury.” Mendoza v. PGT Trucking Inc., No. 1:18-CV-432-LY-ML, 2020 WL 1902562, at *3 (W.D. Tex. Jan. 27, 2020) (collecting cases). To establish a breach of duty, a plaintiff “must prove that a reasonably prudent employer would have provided training beyond that which was given....” Id. (quoting Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.-Fort Worth 2008, no pet.)). “[A]n employer has no duty to warn, instruct, or train an employee already experienced with respect to the work assigned.” Id. at *4 (collecting cases) (emphasis in original); see, e.g., Allen v A&TTransp. Co., Inc., 79 S.W.3d 65, 68-70 (Tex. App.-Texarkana 2002, pet. denied) (finding no duty to train licensed commercial truck driver with years of experience); Ochoa v. Mercer Transp. Co., Inc., No. 5:17-CV-1005-OLG, 2018 WL 7505640, at *3 (W.D. Tex. Dec. 10, 2018) (granting summary judgment for trucking company on gross negligence claim for “failure to administer a road test or ongoing curriculum of safety training to . . . experienced commercial driver”).
Wilkinson testified at her deposition that GT did not provide any training but, rather, administered “a driver's test” to confirm that she already knew how to drive a CMV. (Docket Entry 69-1, at 876.) She explained that GT “does not hire student drivers[;] . . . they don't do training[;] . . . [t]hey make sure, with a driver's test, that you can operate that vehicle, by sitting in that vehicle with you and going on a road test.” (Id.) Raines counters, however, that GT was grossly negligent for failing to train Wilkinson, “a driver with barely a full year of eighteen-wheeler experience.” (Docket Entry 69, at 17.) Raines further argues that, with each instance of Wilkinson's “violation of company speeding policy,” GT was made aware of the need to train Wilkinson, but chose to do nothing. (Id. at 19.)
The cause of the accident was determined to be the speed with which Wilkinson entered a winding stretch of wet road. (Docket Entry 65-2, at 3.) But managing the speed of one's vehicle in response to weather conditions and road signs is “a skill required of all licensed drivers.” Mendoza, 2020 WL 1902562, at *4 (implying that additional training would have made no difference where “accident was caused by an improper lane change,” since changing lanes “require[s] no special skills or knowledge other than that expected of all licensed drivers”). Wilkinson crashed into and injured Raines because she failed to slow down as she approached a bend in a wet road on a rainy day-“dangers ordinarily incident to driving a vehicle.” Id. GT had no duty to train Wilkinson with respect to such matters of common sense for all licensed drivers- commercial or otherwise. Moreover, additional training would have made no difference because adjusting one's speed in response to weather conditions and road signs is not a specialized skill but something “expected of all licensed drivers.” Id. Thus, in addition to a lack of duty, a reasonable jury could not find by clear and convincing evidence that a lack of training “was a substantial factor in bringing about . . . [Raines's] injury, without which the harm would not have occurred.” Doe v. Boys Clubs, 907 S.W.2d 472, 477 (Tex. 1995) (describing one of the requirements of proving proximate cause) (internal citation and quotations omitted). Thus, a reasonable jury could not find that GT was grossly negligent in its failure to train or supervise Wilkinson.
Because the evidence is such that a reasonable jury could not find by clear and convincing evidence that any of the GT's alleged acts or omissions of direct negligence constituted gross negligence, the Court should grant Defendants' motion for summary judgment as to Raines's gross negligence claims against GT (Docket Entry 65).
2. Gross negligence claims against Wilkinson.
“Texas courts have repeatedly made clear that whether a driver is operating a car or truck, acts that support a finding of ordinary negligence, such as a party's failure to obey traffic laws, will not support a finding of gross negligence.” Phillips, 189 F.Supp.3d at 656 (collecting cases). Rather, “a driver's actions must be considerably more extreme, often involving multiple conscious acts or omissions, to support liability.” Id. (citation omitted).
Had Wilkinson caused the wreck simply by exceeding the posted speed limit, she may have been able to obtain summary judgment on gross negligence. However, the record here, viewed in Raines' favor, suggests that Wilkinson did more than simply speed. Wilkinson was driving through a rainstorm and rapidly approaching a winding section of road.(See Docket Entry 58.) She was hauling 32,000 pounds of weight down a wet road. (See Docket Entries 58; 70-1, at 13.) She passed a 25-mile-per-hour winding road warning sign at a speed of roughly 35 miles per hour, then accelerated until she ultimately entered the first bend of the road at roughly 42 miles per hour; unsurprisingly, she lost control of her vehicle. (See Docket Entries 58; 67-4, at 7-8; 70-1, at 12 13.) Viewed objectively, Wilkinson's conduct involved “an extreme degree of risk considering the probability and magnitude of the potential harm to others,” and a reasonable jury could find that she had “actual, subjective awareness of the risk involved”-i.e., speeding past the visible road sign during an obvious rainstorm-“but nevertheless proceed[ed] with conscious indifference to the rights, safety, or welfare of others”-i.e., choosing to accelerate and enter the wet bend in the road at nearly twice the speed permitted under normal, dry conditions, even for ordinary vehicles. See Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).
Vehicle operators must “drive at an appropriate reduced speed” “approaching and going around a curve;” “traveling on a narrow or winding roadway;” or in response to “hazard[ous] . . . weather or highway conditions.” TEX. TRANSP. CODE § 545.351(c); see Tex. Dep't of Public Safety v. Gonzales, 276 S.W.3d 88, 95 (Tex. App.-San Antonio 2008, no pet.) (acknowledging implicitly that “a reasonable, prudent driver should adjust his speed below the posted speed limit when driving in fog and rain”) (citing TEX. TRANSP. CODE § 545.351(b)(1) (“An operator . . . may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual and potential hazards then existing.”)).
To make matters worse, Wilkinson was apparently driving with a large dog in the cabin- in violation of GT's written (though perhaps not enforced) policy against driving with pets. (See Docket Entry 70-1, at 14, 384, 811.) Regardless of whether it violated GT policy, the dog's presence would have been a source of potential distraction, increasing the riskiness of Wilkinson's already-risky conduct. Additionally, the record shows that Wilkinson was making and receiving phone calls on two separate cell phones while she was driving on the date of the accident, with several such conversations taking place within 30 minutes of the accident. (See Docket Entries 67-2, at 2; 70-1, at 627, 722, 735.) Finally, the record shows that Wilkinson taped a fortune-cookie fortune over the lens of the cabin-facing Lytx camera, so that her activity within the cabin would be concealed from view. (See Docket Entry 70-1, at 56.) And GT failed to preserve the cabinfacing Lytx footage, such that not even the audio is available. (Id. at 57-58.) A jury could reasonably infer, given Wilkinson's other conduct, that the missing video and audio footage may have revealed additional negligent acts or omissions: e.g., listening to loud music, eating or drinking, smoking, interacting with the dog, looking at one or both of her two cell phones, etc.
Based on the foregoing, and viewing the record in the light most favorable to Raines and making all inferences in his favor, there is a genuine issue of material fact as to whether Wilkinson's conduct was grossly negligent. Therefore, the Court should deny Defendants' motion for summary judgment as to Raines's gross negligence claims against Wilkinson.
V. Conclusion and Recommendation.
For the reasons stated above, I recommend that Defendants' Motion for Summary Judgment on Plaintiff's Direct Negligence Claims Against GT Express, Inc. (Docket Entry 66) and Defendants' Motion for Summary Judgment on Plaintiff's Gross Negligence Claims Against GT Express, Inc. (Docket Entry 65) be GRANTED, and that Defendants' Motion for Summary Judgment on Plaintiff's Gross Negligence Claims Against Laurah M. Wilkinson (Docket Entry 67) be DENIED.
VI. Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. An objecting party must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).