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Gould v. Wood

United States District Court, N.D. Texas, Dallas Division

April 4, 2019

LATONYA GOULD INDIVIDUALLY AND AS NEXT FRIEND OF K.G., A MINOR, Plaintiff,
v.
DENNIS D. WOOD and SWIFT TRANSPORTATION SERVICES, LLC Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         This civil action filed by Plaintiff LaTonya Gould has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Ed Kinkeade. See Dkt. No. 20.

         Defendants Swift Transportation Service, LLC and Dennis D. Wood have filed a Motion for Summary Judgment against the claims of LaTonya Gould individually. See Dkt. No. 26. Gould, who now represents herself pro se, did not file a response, and the time to do so has passed.

         The undersigned now entered the following findings of fact, conclusions of law, and recommendation that, for the reasons explained below, the Court should grant the motion for summary judgment.

         Background

         On June 13, 2017, Gould was driving southbound on Interstate 35 in Waxahachie, Texas when Defendant Dennis D. Wood collided with her car. See Dkt. No. 1-1. Wood was an employee of Swift Transportation at the time of the accident. See Dkt. No. 27. Wood failed to stop at the scene after the accident, and Gould sustained injuries requiring medical treatment as a result of the collision. See Dkt. No. 1-1.

         Gould sued Swift Transportation and Wood in Texas state court, and Defendants removed the lawsuit to this court on the basis of diversity jurisdiction. See Dkt. No. 7. Gould is a citizen of Texas, Wood is a citizen of Oklahoma, and Swift Transportation is an Arizona corporation.

         Gould asserts claims of negligence per se, negligence, and gross negligence against Wood. Gould asserts that Wood violated Texas Transportation Code §§ 542.206, 545.062, and 545.351 and that those violations constituted negligence per se. See Id. at 5-6. Gould also alleges that Wood failed to keep a proper lookout, failed to yield, operated his motor vehicle at a rate of speed which was greater than that of a person of ordinary prudence, failed to apply the brakes in a timely manner, failed to control his speed, failed to take reasonable care in controlling his vehicle, operated the vehicle without due regard for the rights of others, and drove inattentively. Gould contends that the Transportation Code violations, as well as these acts and omissions, constitute negligence. See Id. at 6-7. And Gould alleges that Wood's acts and omissions involved an extreme degree of risk, constituting gross negligence.

         Gould contends that Swift Transportation is liable for Wood's violations of the Texas Transportation Code and other acts of negligence under the theory of respondeat superior. See Id. at 5, 7-8. She alleges that, at the time of the accident, Wood was in the course and scope of his employment with Swift Transportation. She also asserts a negligent entrustment claim against Swift Transportation. See id.

         Gould seeks monetary relief over $200, 000 but not more than $1, 000, 000 for reasonable medical care and expenses, physical pain and suffering, mental anguish, loss of earning capacity, disfigurement, and the cost of medical monitoring. See Id. at 4, 9-10.

         Defendants now move for summary judgment on Gould's claims only. See Dkt. No. 27 at 4-5. They contend that Gould “failed to produce any evidence that either Defendant acted or failed to act in any way that constituted a derivation below the applicable standard of care.” Id. at 5. Defendants also contend that the Texas Transportation Code statutes cited in Gould's original petition do not provide a basis for negligence per se. See Id. at 5. Defendants further contend entitlement to summary judgment because there is not more than a scintilla of evidence to support Gould's claims. See Id. at 7.

         Legal Standards

         Under Federal Rule of Civil Procedure 56, summary judgment is proper “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 factual “issue is material if its resolution could affect the outcome of the action.” Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). “A factual dispute is ‘genuine,' if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997).

         If the moving party seeks summary judgment as to his opponent's claims or defenses, “[t]he moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case.” Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). “Summary judgment must be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which it will bear the burden of proof at trial. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (internal quotation marks and footnote omitted).

         “Once the moving party meets this burden, the nonmoving party must set forth” - and submit evidence of - “specific facts showing a genuine issue for trial and not rest upon the allegations or denials contained in its pleadings.” Lynch Props., 140 F.3d at 625; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); accord Pioneer Expl., 767 F.3d at 511 (“[T]he nonmovant cannot rely on the allegations in the pleadings alone” but rather “must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” (internal quotation marks and footnotes omitted)).

         The Court is required to consider all evidence and view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party and resolve all disputed factual controversies in favor of the nonmoving party - but only if the summary judgment evidence shows that an actual controversy exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Pioneer Expl., 767 F.3d at 511; Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); Lynch Props., 140 F.3d at 625. “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor. While the court must disregard evidence favorable to the moving party that the jury is not required to believe, it gives credence to evidence supporting the moving party that is uncontradicted and unimpeached if that evidence comes from disinterested witnesses.” Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 942-43 (5th Cir. 2015) (internal quotation marks and footnotes omitted). And “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment, ” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003), and neither will “only a scintilla of evidence” meet the nonmovant's burden, Little, 37 F.3d at 1075; accord Pioneer Expl., 767 F.3d at 511 (“Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” (internal quotation marks and footnote omitted)).

         Rather, the non-moving party must “set forth specific facts showing the existence of a ‘genuine' issue concerning every essential component of its case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). And “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Pioneer Expl., 767 F.3d at 511 (internal quotation marks and footnote omitted).

         “After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” DIRECTV, Inc. v. Minor, 420 F.3d 546, 549 (5th Cir. 2005) (footnote and internal quotation marks omitted).

         The Court will not assume “in the absence of any proof ... that the nonmoving party could or would prove the necessary facts” and will grant summary judgment “in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075. “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment, ” and “[a] failure on the part of the nonmoving party to offer proof concerning an essential element of its case necessarily renders all other facts ...


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