Opinion
CIVIL ACTION NO. 1:22-CV-00411
2023-10-20
Tina JOHNSON, Plaintiff, v. David Thomas HERBERT; Intracoastal Liquid Mud, Inc.; Amazon Logistics, Inc.; Kendrick Transport, LLC; and John Doe, Defendants.
Michael E. Pierce, Kyle William Chapel, Pierce Skrabanek, PLLC, Houston, TX, Gregg Sandler Weinberg, Roberts Markel Weinberg P.C., Houston, TX, for Plaintiff. John W. Bridger, Wilson Elser Moskowitz Edelman & Dicker LLP, Houston, TX, Gregg Sandler Weinberg, Roberts Markel Weinberg P.C., Houston, TX, Kyle William Chapel, Michael E. Pierce, Pierce Skrabanek, PLLC, Houston, TX, for Defendant Amazon Logistics, Inc. Gregg Sandler Weinberg, Justin L. Spears, Rick Vandell Anderson, Roberts Markel Weinberg Butler Hailey, PC, Houston, TX, Kyle William Chapel, Michael E. Pierce, Pierce Skrabanek, PLLC, Houston, TX, Laura Mondello Cabutto, Roberts Markel Weinburg Butler Hailey, Dallas, TX, for Defendant Kendrick Transport, LLC.
Michael E. Pierce, Kyle William Chapel, Pierce Skrabanek, PLLC, Houston, TX, Gregg Sandler Weinberg, Roberts Markel Weinberg P.C., Houston, TX, for Plaintiff.
John W. Bridger, Wilson Elser Moskowitz Edelman & Dicker LLP, Houston, TX, Gregg Sandler Weinberg, Roberts Markel Weinberg P.C., Houston, TX, Kyle William Chapel, Michael E. Pierce, Pierce Skrabanek, PLLC, Houston, TX, for Defendant Amazon Logistics, Inc.
Gregg Sandler Weinberg, Justin L. Spears, Rick Vandell Anderson, Roberts Markel Weinberg Butler Hailey, PC, Houston, TX, Kyle William Chapel, Michael E. Pierce, Pierce Skrabanek, PLLC, Houston, TX, Laura Mondello Cabutto, Roberts Markel Weinburg Butler Hailey, Dallas, TX, for Defendant Kendrick Transport, LLC.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT AMAZON, INC.'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT KENDRICK TRANSPORT, LLC'S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT
Michael J. Truncale, United States District Judge
Before the Court are a Motion for Summary Judgment [Dkt. 35] filed by Defendant Amazon Logistics, Inc. ("Amazon"), and a Supplemental Motion for Summary Judgment [Dkt. 37] filed by Defendant
Kendrick Transport, LLC ("Kendrick Transport"). For the following reasons, Amazon's Motion [Dkt. 35] is GRANTED IN PART AND DENIED IN PART and Kendrick Transport's Supplemental Motion [Dkt. 37] is DENIED.
I. BACKGROUND
A three-car crash brought Plaintiff Tina Johnson too close to the front lines of our nation's thriving transportation industry on October 27, 2020. [Dkt. 2 at 3-4]. The Plaintiff alleges that five parties are responsible for two semitrailers that injured her. See generally id.
Johnson claims that the two eighteen-wheelers are linked to the five Defendants as follows. [Dkt. 35 at 2-3; Dkt. 48 at 2]. One truck was owned by Defendant Intracoastal Liquid Mud, Inc. ("ILM"), and operated by Defendant David Herbert, an ILM employee. [Dkt. 35 at 2]. The other, composed of Kendrick Transport's tractor and Amazon's trailer, was driven by Defendant Todd Goodheart. Id. at 3; [Dkt. 48 at 2]. Goodheart has worked for Kendrick Transport for about eight years. [Dkt. 35 at 3]. Kendrick Transport transports goods for the e-commerce company as an independent contractor. Id. Amazon owns an online Relay Load Board, where contractors may consider, accept, and perform hauling contracts so long as they meet the listed pickup and delivery times and locations. Id. Aside from those conditions, Amazon defers all other matters to its contractors. Id.
Amazon notes in its Motion that all pleadings list the ILM driver's last name as "Herbert," while the driver's own discovery responses and deposition identify him as "Hebert." [Dkt. 35 at 2 n.2]. For this order, the Court uses "Herbert," the name listed on the docket report.
Goodheart is the John Doe listed in this lawsuit. Id. at 3 n.5.
Johnson alleges that, on the day of the accident, she and Herbert traveled westward on Interstate 10. Id.; [Dkt. 48 at 2]. The pertinent part of the interstate highway in Orange, Texas, was and has been under construction with concrete barriers erected between opposing lanes, two of which stretch out in the two drivers' direction. [Dkt. 35 at 3]. Herbert drove behind Johnson. Id. at 2. The two crossed the Sabine River Bridge and drove downward in the outside lane to the Texas Welcome Center. [Dkt. 48 at 2]. Johnson claims that she saw Goodheart speeding up on an acceleration lane as she neared the rest area. [Dkt. 35 at 3].
Goodheart's eighteen-wheeler merged into Interstate 10 in front of Johnson, allegedly triggering the three-vehicle reaction that caused her severe injuries. [Dkt. 48 at 2-3]. According to Goodheart, he tried to avoid accidents by speeding up to between forty-five and fifty-five miles per hour before merging into another lane. Id. at 2. Despite Goodheart's maneuver that day, his semitrailer was still ten to twenty miles per hour slower than the traffic. Id. at 2-3. Johnson slowed down well in advance as she attempted to maintain a safe distance between her vehicle and the semitrailer operated by Goodheart. [Dkt. 35 at 3-4]. Johnson claims that Herbert then sandwiched her car into the rear of Goodheart's rig. [Dkt. 48 at 3]. Goodheart drove on and left, while Herbert remained at the
Amazon, based on "a diligent search of its records," suggests that the vehicle belonged to Kendrick Transport and was driven by Goodheart. Id. at 2. Goodheart and Kendrick Transport in turn assert that this driver was not Goodheart. The driver flatly denies that he was involved in the accident. [Dkt. 37-3 at 4]. As for Kendrick Transport, the contract carrier cites factual inconsistencies in arguing that its vehicle did not injure Johnson. For instance, Kendrick Transport notes that Johnson and Herbert described the tractor that merged in front of Johnson as blue while Goodheart characterized his tractor as red. [Dkt. 37 at 5-6, 11-14].
scene until an ambulance arrived for Johnson. Id. A state police officer arrived and interviewed the two drivers and witnesses. See generally [Dkt. 37-6]. Johnson's injuries required one surgery and allegedly last to this date. [Dkt. 48 at 3].
Johnson filed this lawsuit in a state court about two years after the accident. [Dkt. 1 at 1]. Kendrick Transport removed the case to this Court on diversity grounds. [Id. at 1-3]. Since then, Johnson filed a notice of nonsuit with prejudice against Herbert and ILM. See generally [Dkt. 72]. She still has multiple claims against the other three Defendants: Goodheart, Kendrick Transport, and Amazon. [Dkt. 2 at 4-6]. This order concerns the two summary judgment motions that Kendrick Transport and Amazon filed as to four theories of liability: a negligence claim against Goodheart; and negligent hiring, negligent entrustment, and vicarious liability claims against Amazon [Dkt. 35 at 6; Dkt. 37 at 1].
II. LEGAL STANDARD
"[F]ederal court[s] appl[y] state substantive law and federal procedural law to diversity cases." Funches v. Progressive Tractor & Implement Co., L.L.C., 905 F.3d 846, 849 (5th Cir. 2018) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).
Summary judgment is proper if "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Funches, 905 F.3d at 849 (quoting Fed. R. Civ. P. 56(a)). "'Material facts' are 'facts that might affect the outcome of the suit under the governing law.'" Lechuga v. S. Pac. Transp. Co., 949 F.2d 790, 794 (5th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lechuga, 949 F.2d at 794 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A court must "draw all reasonable inferences in favor of the nonmovant at the summary judgment stage[] ...." Funches, 905 F.3d at 849.
If, as here, the nonmoving party will bear the burden of persuasion at trial, courts rely on the Celotex burden-shifting framework. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see, e.g., Funches, 905 F.3d at 849; Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991); St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987). Under this scheme, the movant may meet its burden of demonstrating that the nonmovant lacks sufficient evidence for a prima facie case in two ways. St. Amant, 806 F.2d at 1297 (citing Celotex, 477 U.S. at 329-35, 106 S.Ct. 2548 (Brennan, J., dissenting)). Specifically, the party "must either submit affirmative evidence that negates an essential element of [the nonmovant]'s claim or ... demonstrate that [the nonmovant]'s evidence is insufficient to establish an essential element of [the] claim." St. Amant, 806 F.2d at 1297 (citing Celotex, 477 U.S. at 329-35, 106 S.Ct. 2548 (Brennan, J., dissenting)).
Once the movant succeeds, the burden shifts to the nonmovant. Anderson, 477 U.S. 242 at 249-50, 106 S.Ct. 2505; Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting). If the moving party chose the first route, the nonmovant must cite evidence sufficient to dispute the contention that there are no disputed facts. Anderson, 477 U.S. 242 at 249-50, 106 S.Ct. 2505. Under the second option, the
nonmovant must present "evidence already in the record that was overlooked or ignored by the moving party." Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting).
If the nonmovant meets its burden under either scenario, the burden shifts again between the movant and the nonmovant. Id. Specifically, the movant must demonstrate the nonmovant's inadequacies. Id. If the movant does, "the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial ... or (3) submit an affidavit explaining why further discovery is necessary ...." Id. at 333 n.3, 106 S.Ct. 2548 (citation omitted). "Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial." Id. (citation omitted).
III. DISCUSSION
There are five issues before the Court:
Johnson states in her Response to Kendrick Transport's Supplemental Motion that she "drop[s] her claims for gross negligence as well as negligent entrustment, supervision, retention, and/or hiring" against Goodheart and Kendrick Transport. [Dkt. 47 at 5 n. 13].
1. Whether Herbert's on-scene testimony is admissible;
2. Whether there is a genuine issue of material fact regarding Johnson's negligence claim against Goodheart;
3. Whether there is a genuine issue of material fact regarding Johnson's negligent hiring claim against Amazon;
4. Whether there is a genuine issue of material fact regarding Johnson's negligent entrustment claim against Amazon; and
5. Whether federal law invalidates Johnson's vicarious liability claim against Amazon.
Amazon apparently chose against addressing Johnson's negligent supervision claim. See [Dkt. 35 at 1, 6]. Johnson's Complaint alleges negligent hiring and negligent supervision against Amazon. [Dkt. 2 at 5]. Amazon indicates awareness of both causes of action in its Motion. [Dkt. 35 at 1] ("whether Amazon negligently hired or supervised Kendrick Transport..."). But the Motion only challenges the negligent hiring claim. Id. at 7-9. Also, Amazon's Reply alludes to negligent supervision in a footnote. [Dkt. 55 at 4]. Accordingly, the Court only rules on the negligent hiring issue in this order.
[Dkt. 35 at 1-2; Dkt. 37 at 1; Dkt. 47 at 5 n.13].
As an initial matter, the Court centers its negligence analyses on the question of duty. See Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 209 (Tex. 2015). "Summary judgment is rarely appropriate in negligence ... cases, even if the material facts are not in dispute." Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir. 1992) (first citing Trevino v. Yamaha Motor Corp., U.S.A., 882 F.2d 182, 184 (5th Cir. 1989); then citing Miller-Schmidt v. Gastech, Inc., 864 F.2d 1181, 1185 (5th Cir. 1989); and then citing Davidson v. Stanadyne, Inc., 718 F.2d 1334, 1338 (5th Cir. 1983)). It follows that summary judgment is even more questionable here, as parties dispute material facts, such as the composition of and accountability for the eighteen-wheeler that was in front of Johnson's car. See Little, 952 F.2d at 847; Subsections I, III.A-C of this opinion. But duty "is a question of law for the court[]...." Austin, 465 S.W.3d at 209 (citing Gen.
Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008) (footnote omitted)). All other elements are best reserved for the jury. See Austin, 465 S.W.3d at 209.
That said, and granting that Herbert's testimony is admissible, the Court denies summary judgment on all remaining issues except the negligent entrustment and vicarious liability claims against Amazon.
A. Herbert's Admissible On-Scene Testimony
Kendrick Transport is right to note that Herbert's statements recorded in the state trooper's body camera footage are not hearsay and therefore admissible. Generally, "the rule against hearsay bars the admission of any statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." United States v. Noria, 945 F.3d 847, 852 (5th Cir. 2019) (internal quotation marks omitted); see also Fed. Rs. Evid. 801(c) (defining "hearsay"), 802 (deeming hearsay inadmissible unless a federal statute, a Federal Rule of Evidence, or a rule prescribed' by the United States Supreme Court provides otherwise), 805 (noting that "hearsay within hearsay" is inadmissible unless each level of hearsay qualifies as an exception).
Two exceptions to this generalization are relevant here. Fed. Rs. Evid. 803(8), 803(2). The first concerns public records. Id. 803(8). Rule 803(8) permits a public record or statement that explains "a matter observed by law-enforcement personnel." Id. 803(8)(A)(ii). In civil cases, "[p]olice reports are generally admissible under Rule 803(8) as public records that set forth factual findings from a legally authorized investigation." Sanders v. Sky Transp., LLC, 569 F. Supp. 3d 455, 458 (E.D. Tex. 2021) (citations omitted). The second exemption admits as an excited utterance an out-of-court statement that was delivered close to a "startling event or condition[] ... while the declarant was under the stress of excitement that it caused." Fed. R. Evid. 803(2); see, e.g., United States v. Ebron, 683 F.3d 105 (5th Cir. 2012) (ruling an implicating ramble admissible on the grounds that the criminal defendant made the statement on the same night as the crime).
Additionally, some materials in an official report involve more than one layer of hearsay and thus are not automatically admissible. Bedford Internet Off. Space, LLC v. Travelers Cas. Ins. Co., 41 F. Supp. 3d 535, 544 (N.D. Tex. 2014). These include witness statements, which are "inadmissible unless each level of hearsay qualifies under one of the hearsay exceptions." Id. (citation omitted). Among the applicable statements are ones "not based on the reporting officer's personal knowledge," such as a party-witness's testimony immediately after an accident. Sanders, 569 F. Supp. 3d at 458-59. Such a statement in a public record comprises "hearsay within hearsay" that requires judicial scrutiny of each level before admission. Bedford, 41 F. Supp. 3d at 544.
Here, Herbert's post-accident statements constitute admissible "hearsay within hearsay." See id. The first level of hearsay is the body camera footage that was recorded during the state trooper's post-accident interviews. The recording contains the officer's factual findings from an official investigation. Fed. R. Evid. 803(8)(A)(ii); [Dkt. 37-6]. Therefore, the footage is admissible as a public record. See Sanders, 569 F. Supp. 3d at 458; see also Smith-Jordan v. Love, No. 19-14699, 2022 WL 226513, at *7 (E.D. La. Jan. 26, 2022) (declining to exclude a body camera video from an automobile accident scene on the basis that the plaintiffs statements contained in the footage are admissible).
The second level of hearsay is Herbert's statements, which are admissible as excited utterances. ILM's Global Positioning System data indicates that the accident occurred on October 27, 2020, at 1:31:12 p.m. Central Time. [Dkt. 35 at 2 n.4]. The officer started to write the accident report around 1:51 p.m. Central Time on the same day. [Dkt. 37-6; Dkt. 37-7 at 1]. Given this temporal proximity between the accident and the investigation, Herbert would still have been under post-crash stress. See Fed. R. Evid. 803(2). His statements thus qualify as excited utterances. See Ebron, 683 F.3d at 136.
Kendrick Transport advances in its Supplemental Motion two questionable grounds for admission of Herbert's statements. [Dkt. 37 at 29-30]. First, Kendrick Transport asserts without support that the testimony is "supported by sufficient guarantees of trustworthiness[] and ... is more probative on the point for which it is offered than any other evidence that [Kendrick Transport] can obtain through reasonable efforts," concluding that its exclusion "would be greatly prejudicial to Kendrick Transport." Id. at 29-30. This explanation is somewhat self-contradictory, as Kendrick Transport's Reply describes Herbert's memory as being "not that great." [Dkt. 61 at 2]. Second, Kendrick Transport, contrasting Herbert's testimony with a written statement that he provided to an insurance company, contends that Herbert provided his post-accident testimony to (1) challenge "an express or implied charge that the declarant recently fabricated it" or (2) spoke with an "improper influence or motive." [Dkt. 37 at 29]. Both (1) and (2) are more appropriate for the inscribed statement, not the verbal one.
Accordingly, because both out-of-court statements fall under hearsay exceptions, Herbert's statements are admissible. See Bedford, 41 F. Supp. 3d at 544.
B. Negligence Claim Against Goodheart
Kendrick Transport falls short of demonstrating that there is no genuine issue of material fact about this claim. "The elements of a negligence action are a duty, a breach of that duty, and damages proximately caused by the breach." Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App.-Fort Worth 2002, no pet.) (citing Greater Hous. Trans'p. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). Each Texas driver owes to others a "common law duty to operate [his or] her vehicle at a speed at which an ordinarily prudent person would operate ... under the same or similar circumstances." Fitzgerald v. Russ Mitchell Constructors, Inc., 423 S.W.2d 189, 191 (Tex. App.-Houston 1968, writ ref'd n.r.e.) (citing Vardilos v. Reid, 320 S.W.2d 419, 423 (Tex. App.-Houston 1959, writ denied)).
Here, Kendrick Transport did not prove that no genuine issue of material fact exists. See Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting). The company's Supplemental Motion presents four points against Johnson's negligence claim: (1) Goodheart had safely entered the highway; (2) Johnson had enough time to respond safely to his emergence; (3) Roger Allen, Johnson's safety expert, opined that Herbert and ILM "must take full responsibility for this collision"; and (4) factual inadequacies and inconsistencies indicate that Goodheart may not be liable after all. [Dkt. 37 at 4-9]. In response to the third assertion, Johnson cites Allen's deposition testimony that the "responsibility" of a truck driver such as Goodheart would dictate that he or she "cannot
The Court does not address the first, second, and fourth assertions because they are immaterial. The first and second points about Goodheart's entrance and Johnson's response do not necessarily answer the question of duty. As for the fourth point, such factual disagreements, at best, warrant denial of summary judgment on this issue. See Funches, 905 F.3d at 849.
change lanes unless it's safe to do [so]." [Dkt. 47 at 16; Dkt. 47-5 at 7]. Kendrick Transport in its Reply fails to address this evidence and instead resorts to criticizing other materials, attacking Allen's credibility, and making other irrelevant assertions. [Dkt. 54 at 4-8]. The Supplemental Reply does not help either, as it merely asserts that Johnson lacks "any credible evidence to support the theory ... of [its] negligence." [Dkt. 61 at 6].
In sum, Kendrick Transport fell short of meeting its burden with respect to the negligence issue. See Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting). In other words, a genuine issue of material fact exists. See Funches, 905 F.3d at 849. Accordingly, the Court DENIES Kendrick Transport's Supplemental Motion [Dkt. 37]. See id.
C. Three Claims Against Amazon
Amazon presents three arguments, two of which succeed. Johnson demonstrates a genuine issue of material fact about her negligent hiring claim. But Amazon shows that she has insufficient evidence for negligent entrustment and vicarious liability.
1. Negligent Hiring
The Court, rejecting the argument that federal law preempts this state cause of action, determines that Johnson raises a genuine issue of material fact about Amazon's duty.
a. Amazon's Preemption Argument
Initially, the Court holds that the Federal Aviation Administration Authorization Act ("FAAAA") does not preempt Johnson's negligent hiring claim. The Supremacy Clause of the United States Constitution annuls state laws that "interfere with[] or are contrary to[] the laws of Congress ...." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824); U.S. Const. art. VI cl. 2. There are three types of preemption: field, conflict, and express. Estate of Miranda v. Navistar, Inc., 23 F.4th 500, 504 (5th Cir. 2022). The only one relevant here is express preemption, which is triggered when Congress includes "express language defining the existence and scope of pre[]emption." Id. (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 109, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (Kennedy, J., concurring)). If express preemption is a possibility, "statutory construction must... focus on the plain wording of the clause, which ... contains the best evidence of Congress'[s] pre[]emptive intent." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).
It is true that the FAAAA provides for preemption of certain state laws. 49 U.S.C. § 14501 et seq. Under the statute, "a State, political subdivision of a State, or political authority of [two] or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier... or any motor private carrier, broker, or freight forwarder with respect to the transportation of property." Id. § 14501(c)(1). But the FAAAA also carves out an exception and does "not restrict the safety regulatory authority of a State with respect to motor vehicles[] ...." Id. § 14501(c)(2)(A). "Congress'[s] clear purpose in [Section] 14501(c)(2)(A) is to ensure that its preemption of States' economic authority over motor carriers of property ... 'not restrict' the preexisting and traditional state police power over safety." City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 439, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002) (quoting 49 U.S.C. § 14501(c)(2)(A)). In other words, the exemption "seeks to save from preemption state power 'in a field
which the States have traditionally occupied.'" Id. at 438, 122 S.Ct. 2226 (citing Medtronic, Inc. v. Lohr, 518 U. S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)).
But the problem with Amazon's preemption argument is that it overlooks established guidelines on the FAAAA. See Lopez v. Amazon Logistics, Inc., 458 F. Supp. 3d 505, 510-17 (N.D. Tex. 2020). For instance, the FAAAA's safety regulation exception must be construed broadly in favor of state laws. Id. at 514 (first citing Columbus, 536 U.S. at 426, 122 S.Ct. 2226; and then citing VRC LLC v. City of Dall, 460 F.3d 607, 612 (5th Cir. 2006)). To that end, the statute "does not preempt state laws affecting carrier prices, routes, and services in only a tenuous, remote, or peripheral manner." Lopez, 458 F. Supp. 3d at 513 (citing Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260-61, 133 S.Ct. 1769, 185 L.Ed.2d 909 (2013)). Further, "courts within the Fifth Circuit must 'decline to elasticize Congress's economic goal by narrowly interpreting safety regulatory authority of a State with respect to motor 'vehicles.'" Lopez, 458 F. Supp. 3d at 515 (quoting Cole v. City of Dall, 314 F.3d 730, 734 (5th Cir. 2002)).
Considering these principles on construing the FAAAA, the Court elects to follow Lopez and holds that the statute exempts Johnson's state law claim from preemption. 458 F. Supp. 3d at 512-17. To do so, the Court must determine that (1) "that common law claims constitute an exercise of a state's 'safety regulatory authority'" and (2) "that a negligent[]hiring claim asserted against a broker is 'with respect to motor vehicles.'" Id. at 515 (quoting 49 U.S.C. § 14501(c)(2)(A)).
In doing so, the Court notes that the disagreement between Johnson and Amazon about whether Amazon qualifies as a broker or shipper is immaterial to the outcome. Johnson rightly notes that Amazon is "its own broker." [Dkt. 48 at 4]; see also [Dkt. 35 at 3] (noting that Amazon's contract carriers accept assignments on the company's Relay Load Board). Amazon in its Reply briefly contends that it is a shipper, not a broker. [Dkt. 55 at 7-9]. But the Court need not distinguish these two roles here, as a negligent hiring claim applies the same notwithstanding a defendant's role. See infra Subsection III.C.1.b of this opinion.
Both prongs of the safety exception provision are satisfied here. See id. at 515-16. Regarding the first prong, Section 14501(c)(2)(A)'s language seems to recognize "that a state's 'regulatory authority'... includes common law claims." Id. at 515 (citing Am. Trucking Ass'ns, Inc. v. City of L.A., Cal., 569 U.S. 641, 650-51, 133 S.Ct. 2096, 186 L.Ed.2d 177 (2013)); see also Desiano v. Warner-Lambert & Co., 467 F.3d 85, 86 (2d Cir. 2006) ("Historically, common law liability has formed the bedrock of state regulation, and common law tort claims have been described as a critical component of the States' traditional ability to protect the health and safety of their citizens."). As for the second prong, the phrase "with respect to" has been defined as "concerning." Lopez, 458 F. Supp. 3d at 516 (citing Dan's City, 569 U.S. at 261, 133 S.Ct. 1769). A "motor vehicle" under the FAAAA means "a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation[]...." 49 U.S.C. § 13102(16). Together, these definitions mean "that a claim seeking damages ... for negligently placing an unsafe carrier on [a] highway[] is a claim that concerns motor vehicles and their safe operation." Lopez, 458 F. Supp. 3d at 516.
Therefore, the Court holds that the exception under Section 14501(c)(2)(A) applies to Johnson's negligent hiring claim and thus that the FAAAA does not
preempt her cause of action. See id. at 512-17.
b. Johnson's Negligent Hiring Claim
Having rejected Amazon's preemption theory, the Court finds that Johnson successfully carries her summary judgment burdens. Negligent hiring is a variant of "simple negligence causes of action based on an employer's direct negligence rather than on vicarious liability." Morris, 78 S.W.3d at 49 (first citing Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. App.-Houston 1999, pet. denied); and then citing Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.-Houston 1998, pet. denied)). "To successfully prosecute a claim of negligent hiring, ... a plaintiff is required to show that (1) the employer owed a legal duty to protect third parties from the employee's actions, and (2) the third party sustained damages proximately caused by the employer's breach of that legal duty." Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 655 (Tex. App.-Dallas 2002, pet. denied) (first citing Houser v. Smith, 968 S.W.2d 542, 544 (Tex. App.-Austin 1998, no pet.); and then citing Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex. App.-Tyler 1979, writ ref d n.r.e.)).
Relevantly, "one who employs an independent contractor has no [general] duty to ensure that the contractor performs its work in a safe manner." AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020) (citation omitted); see also Gonzalez v. Ramirez, 463 S.W.3d 499, 505-06 (Tex. 2015) (commenting that it "makes no sense to burden [an employer] with the many duties already placed upon [an independent contractor]."). But an exception arises when "the employer retains some control over the manner in which the contractor performs the work that causes the damage." AEP Tex., 612 S.W.3d at 295 (citation omitted). This exemption recognizes that, "[i]f the right to control a contractor's work exists, a duty arises regardless of whether actual control is exercised." Id. (citing Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002)).
Here, Johnson raises a genuine issue of material fact about Amazon's duty as an employer of an independent contractor. See Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting). Amazon first relies on cases to argue that the Court should not hold it liable. [Dkt. 35 at 7-9]. Johnson in turn points out that Amazon reserves certain powers, including ones controlling driver safety and driver safety training. [Dkt. 48 at 3-4; Dkt. 48-4 at 37; Dkt. 48-6 at 28]. Amazon then attempts to render Johnson's argument inadequate, contending that she mischaracterized the deposition testimony of Ryan Sandefur, an Amazon corporate representative who did not "want it to be misrepresented that there's no requirements being checked." [Dkt. 53 at 5-6; Dkt. 48-4 at 37]. Finally, Johnson notes Sandefur's subsequent statement that, before Amazon approves a motor carrier as an independent contractor, the company neither requires nor verifies documentation on the applicant's driver training policy. [Dkt. 75 at 3-5; Dkt. 48-4 at 37]. Johnson's answers convince the Court that there is a genuine issue of material fact about whether Amazon retained sufficient control over driver safety training and thus owed a duty to ensure that Kendrick Transport perform its work in a safe manner. See Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting); AEP Tex., 612 S.W.3d at 295 (citation omitted). In other words, Amazon failed to carry the movant's burden. See Celotex, 477 U.S. at 333 n.3, 106 S.Ct. 2548 (Brennan, J., dissenting) (citation omitted).
Because Johnson meets both of her burdens, a genuine issue of material fact for
trial exists. See id. at 332-33, 106 S.Ct. 2548. Therefore, the Court DENIES summary judgment on this issue. See Funches, 905 F.3d at 849.
2. Negligent Entrustment
Johnson lacks sufficient evidence to establish this cause of action. Negligent entrustment has five elements: "(1) the employer entrusted the vehicle to the employee; (2) the employee was an unlicensed, incompetent, or reckless operator; (3) at the time of the entrustment, the employer knew or should have known that the employee was an unlicensed, incompetent, or reckless operator; (4) the employee was negligent on the occasion in question; and (5) the employee's negligence proximately caused the accident." 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 909 (Tex. 2016) (cleaned up). Because entrustment "takes place before an accident, subsequent conduct has no bearing on a negligent entrustment claim." Huynh v. R. Warehousing & Port Servs., Inc., 973 S.W.2d 375, 378 (Tex. App.-Tyler 1998, no pet.) (cleaned up). Instead, Texas law determines incompetence or recklessness through factors such as "previous traffic violations, previous habits[,] or intemperance." Revisore v. West, 450 S.W.2d 361, 364 (Tex. App.-Houston 1970, no writ) (citing Broesche v. Bullock, 427 S.W.2d 89 (Tex. App.-Houston 1968, writ ref'd n.r.e.)). This means that "a plaintiff will not succeed on a negligent entrustment ... claim [if] an investigation would not have revealed the risk." TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010) (citation omitted).
Here, Johnson failed to carry her burden. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Amazon advances three points: (1) Johnson lacks evidence on inadequacy of Amazon's investigation on Kendrick Transport; (2) Kendrick Transport has conducted an "extensive" background check on each employee; and (3) Goodheart is the best driver Kendrick Transport has ever hired. [Dkt. 35 at 8-9, 11-12]. Johnson responds by citing Brian Kendrick, Kendrick Transport's owner. [Dkt. 48 at 8]. Kendrick's deposition testimony indicated that he would be concerned about a supposed employee who merges into a highway in a manner that "does not allow traffic that's already on the highway to proceed normally" and that such an act "would not be a mistake." [Dkt. 48-3 at 13, 15]. These statements regarding the driver's actions fail to raise a factual issue about Amazon's duty at the time of entrustment. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; Huynh, 973 S.W.2d at 378.
Because Johnson failed to prove the existence of disputed facts, there is no genuine issue of material fact as a matter of law. See Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting). The Plaintiff failed to show any fact that Goodheart was an unlicensed, incompetent, or reckless driver or that Amazon knew or should have known that he was an unlicensed, incompetent, or reckless driver. See 4Front, 505 S.W.3d at 909. Therefore, the Court GRANTS summary judgment on negligent entrustment for Amazon. See Funches, 905 F.3d at 849.
3. Vicarious Liability
Finally, Johnson's vicarious liability claim fails as a matter of law. "The theory of vicarious liability is a judicially created vehicle for enforcing remedies for wrongs committed." Dutcher v. Owens, 647 S.W.2d 948, 950-51 (Tex. 1983) (cleaned up). The doctrine is "[j]ustified on public policy grounds[] ...." Id. at 951 (citations omitted). Vicarious liability requires the plaintiff to "show that, at the time of the negligent conduct, the worker (1) was an employee and (2) was acting in the course and scope of his employment." Painter v.
Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018) (citations omitted).
Here, Johnson failed to meet even the initial burden. See Anderson, 477 U.S. 242 at 249-50, 106 S.Ct. 2505; Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting). Amazon raises in its Motion many arguments against vicarious liability. [Dkt. 35 at 12-15]. Johnson's Response lacks a clear, direct answer to any of those challenges—the only material that could possibly be relevant is a paragraph asking that the Court hold Amazon liable "as a matter of public policy." [Dkt. 48 at 8-9]; see Dutcher, 647 S.W.2d at 951. Johnson's vague plea (if there is one at all) does not satisfy her requisite burden, as the paragraph on liability "as a matter of public policy" neither raises factual disputes nor cites evidence overlooked or ignored by Amazon. See Anderson, 477 U.S. 242 at 249-50, 106 S.Ct. 2505; Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting).
Because Johnson presents insufficient evidence to establish vicarious liability, there is no genuine issue of material fact as a matter of law. See Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548 (Brennan, J., dissenting). Therefore, the Court GRANTS summary judgment in favor of Amazon on the vicarious liability claim. See Funches, 905 F.3d at 849.
IV. CONCLUSION
It is therefore ORDERED that Defendant Amazon's Motion for Summary Judgment [Dkt. 35] is hereby GRANTED IN PART AND DENIED IN PART. Amazon's Motion is GRANTED with respect to the negligent entrustment and vicarious liability claims. Amazon's Motion is DENIED with respect to the negligent hiring claim.
It is FURTHER ORDERED that Defendant Kendrick Transport's Supplemental Motion for Summary Judgment [Dkt. 37] is hereby DENIED.