United States District Court, N.D. Texas, Dallas Division
LATONYA GOULD INDIVIDUALLY AND AS NEXT FRIEND OF K.G., A MINOR, Plaintiff,
DENNIS D. WOOD and SWIFT TRANSPORTATION SERVICES, LLC Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
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.
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.
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
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.
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.
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.
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
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.
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.
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).
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).
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
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)).
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).
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).
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 ...