United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER SENIOR JUDGE
removed lawsuit arising from a fatal automobile accident,
defendants YRC Inc. (“YRC”) and Jeffrey Thorp
(“Thorp”) move for partial summary judgment,
contending that there is no genuine dispute of material fact
as to whether Thorp and YRC were grossly negligent, or
whether the decedent endured any conscious pain and suffering
prior to his death. For the reasons that follow, the court
grants defendants' motion insofar as plaintiffs seek to
hold YRC vicariously liable for Thorp's alleged gross
negligence, and denies the motion in all other respects.
17, 2017 plaintiffs Maria de Jesus Partida Aranda
(“Maria”), Justino Gutierrez
(“Justino”), and Jonathan Gutierrez Partida
(“Jonathan”) were traveling southbound on Interstate
35 (“I-35”) in a pickup truck. Justino was
driving, his wife Maria was in the back seat, and their son
Jonathan was in the front passenger seat. The family was
running errands, and Justino was using the trip as an
opportunity to teach his teenage son about driving. They were
in the far right lane of I-35-in standstill traffic-waiting
to exit onto Royal Lane.
same time, defendant Thorp was driving a double-trailer semi
truck southbound on I-35. He was transporting freight for his
employer, YRC, from Independence, Missouri to Irving, Texas.
Between 1995 and 2008, Thorp received 50 different warning
letters, suspensions, and discharges from YRC,  was involved in
five non-preventable accidents, and caused one preventable
injury. The vast majority of Thorp's disciplinary
infractions involved tardiness or absenteeism, but he also
received multiple warning letters for driving for longer
hours than the law permitted.
to plaintiffs, Thorp was behind schedule and in a hurry on
July 17. He was approaching his 14-hour shift limit under the
Federal Motor Carrier Safety Act, and he would soon be forced
to pull over for a break. Thorp was traveling in the center
left lane as he approached the Royal Lane exit. Traffic in
the far right lane was not moving, and the lane immediately
to Thorp's right was moving at a crawl. As Thorp drove by
at 57 miles per hour, a red car in the lane to Thorp's right
changed into his lane. Thorp collided with the car.
resulting pile-up, another tractor-trailer struck
plaintiffs' pickup truck. Jonathan testified about the
Q. . . . What is the first thing you remember about the
A. The movement.
Q. And how would you describe that?
A. It was strong like-something like a giant like grabbed a
string and just pulled us with all of his force to the
barricade [at] the side of the road.
Ps. App. 212. The force of the collision threw Justino toward
the passenger side of the vehicle and left him lying at
Jonathan's feet. Maria, meanwhile, was knocked
unconscious. When she awoke, she saw that Jonathan had
escaped from the pickup truck, but she and Justino were
trapped inside. Rescuers had to extricate them. Justino was
still breathing, but he was not moving or speaking, so first
responders placed him in an ambulance and attempted to
resuscitate him. Their efforts failed; Justino died as a
result of the accident.
filed this suit in August 2017 in Texas state court.
Defendants removed the case to this court in March
2018. The first amended complaint that plaintiffs
subsequently filed in this court alleges that Thorp acted
with negligence and gross negligence in operating his tractor
trailer, and that YRC acted with negligence and gross
negligence in hiring, training, supervising, and entrusting a
semi truck to Thorp. Based on theories of respondeat
superior, agency, and joint-venture liability, plaintiffs
allege that YRC is jointly and severally liable for any award
against Thorp. Defendants now seek partial summary judgment
on whether plaintiffs are entitled to damages for
Justino's alleged pain and suffering; whether YRC acted
with gross rather than ordinary negligence in hiring,
training, and supervising Thorp; whether Thorp himself acted
with gross rather than ordinary negligence in operating his
tractor trailer; and whether YRC is vicariously liable for
Thorp's alleged gross negligence. The parties have
briefed the motion, and it is ripe for decision.
party moves for summary judgment on claims on which the
opposing parties will bear the burden of proof at trial, the
moving party can meet its summary judgment obligation by
pointing the court to the absence of admissible evidence to
support the opposing parties' claims. See Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the
moving party does so, the opposing parties must go beyond
their pleadings and designate specific facts showing that
there is a genuine issue for trial. See Id. at 324;
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc) (per curiam). An issue is genuine if the
evidence is such that a reasonable jury could return a
verdict in the opposing parties' favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
opposing parties' failure to produce proof as to any
essential element of a claim renders all other facts
immaterial. See TruGreen Landcare, L.L.C. v. Scott,
512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.).
Summary judgment is mandatory if the opposing parties fail to
meet this burden. Little, 37 F.3d at 1076.
heightened proof standard will apply at trial, that standard
controls at the summary judgment stage. Anderson,
477 U.S. at 254 (holding that where clear and convincing
evidence standard would apply at trial of libel action, it
applied in determining merits of summary judgment motion).
Under Texas law, gross negligence must be proved by clear and
convincing evidence. Coastal Transp. Co. v. Crown Cent.
Petroleum Corp., 136 S.W.3d 227, 233 n.2 (Tex. 2004)
(noting that, effective September 1, 1995, Texas law requires
that plaintiff prove gross negligence by clear and convincing
evidence). This standard requires that plaintiffs adduce
evidence that is “sufficient to make the existence of
the facts highly probable, ” not merely evidence that
is “sufficient to make the existence of fact more
probable than not, as required by the preponderance
standard.” Foley v. Parlier, 68 S.W.3d 870,
880 (Tex. App. 2002, no pet.). Therefore, the proof must be
“sufficient to produce in the ...