United States District Court, W.D. Texas, San Antonio Division
JOSHUA NEDDO, GERALDINE NEDDO, INDIVIDUALLY AND AS NEXT FRIEND OF KAILEYAH NEDDO, A MINOR, Plaintiffs,
NEW PRIME, INC. AND BENJAMIN JAMES DOUGHERTY, Defendants.
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered Defendants' Motion for Partial
Summary Judgment (docket no. 86), Plaintiffs' response
(docket no. 92), and Defendants' reply (docket no. 93).
After careful consideration, the Court GRANTS Defendants'
case stems from an automobile collision between Plaintiffs
and Defendant Benjamin James Dougherty on May 12, 2017.
Plaintiffs are Geraldine Neddo (the driver at the time of the
collision), Joshua Neddo (Geraldine's husband, who was in
the passenger seat at the time of the collision), and
Geraldine Neddo as next friend of Kaileyah Neddo (a minor who
was in the back seat of the vehicle at the time of the
time of the accident, Dougherty drove a tractor-trailer for
his employer, Defendant New Prime, Inc. Dougherty was
allegedly acting within the course and scope of his
employment with New Prime at the time of the accident. Docket
no. 11 at ¶10. Plaintiffs allege that the collision
occurred when Dougherty, who was driving the tractor-trailer,
turned right onto Broadway Street from the left lane of
Gulfmart Street. Id. Plaintiffs allege that they
were in the right lane on Gulfmart Street and that Dougherty
crashed into their vehicle while making his turn.
Id. Pictures of the accident show that the trailer
portion of Dougherty's tractor-trailer hit
Plaintiffs' vehicle while Dougherty was in the process of
making a right hand turn onto Broadway Street. Docket no.
92-19. Plaintiffs seek damages upward of one million dollars
and claim to have suffered permanent injuries. Docket no. 11
October 2, 2017, Plaintiffs filed their Original Petition in
the 166th Judicial District Court of Bexar County, Texas.
Docket no. 1-4. On February 12, 2018, Defendants filed their
Notice of Removal to this Court. Docket no. 1. Plaintiffs
bring negligence and gross negligence claims against New
Prime for entrusting Dougherty with the vehicle; providing
him unsafe equipment and negligently maintaining it; and
negligently hiring, training, supervising, retaining, and
contracting Dougherty. Docket no. 11 at ¶17-23.
Plaintiffs also bring a cause of action against New Prime
under respondeat superior, seeking to hold New Prime liable
for Dougherty's underlying negligence. Id. at
¶12-15. In their response to the Motion for Summary
Judgment, Plaintiffs have requested leave to amend their
First Amended Original Complaint to withdraw the negligence
and gross negligence causes of action regarding hiring,
entrustment, retention, contracting, and maintenance. Docket
no. 92 at 1. This request is granted, these claims are
withdrawn, and Defendants' Motion for Partial Summary
Judgement is moot as to the withdrawn claims.
maintain that New Prime was negligent and grossly negligent
in the training and supervision of and providing unsafe
equipment to Dougherty. Id. at 2. As to the
respondeat superior claim, Plaintiffs allege that New Prime
is liable because Dougherty was operating the vehicle in the
course of his employment with New Prime at the time of the
accident. Docket no 11 at ¶12-15. As to the remaining
negligence and gross negligence claims against New Prime,
Plaintiffs allege that New Prime was negligent or grossly
negligent in the manner in which Dougherty was trained and
supervised prior to the collision at issue. Id. at
¶17-23. Plaintiffs also allege that New Prime acted
negligently or grossly negligently by providing unsafe
equipment to Dougherty which proximately caused
maintain that Dougherty was negligent, negligent per se, and
grossly negligent. As to the claims against Dougherty,
Plaintiffs allege that Dougherty was negligent because he
failed to exercise ordinary care in the operation of his
motor vehicle, that Dougherty was negligent per se because he
violated numerous provisions of the Texas Transportation
Code, and that Dougherty was grossly negligent because he had
actual, subjective awareness of the risk involved but
nevertheless, proceeded in conscious indifference to the
rights, safety, or welfare of Plaintiffs. Docket no. 11 at
filed the Motion for Partial Summary Judgment now before the
Court on May 6, 2019. Docket no. 86. Defendants seek summary
judgment on the direct and gross negligence claims against
New Prime and the gross negligence claim against Dougherty.
Standard of Review
Court shall grant summary judgment 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). To establish that there is no genuine
issue as to any material fact, the movant must either submit
evidence that negates the existence of some material element
of the non-moving party's claim or defense, or, if the
crucial issue is one for which the non-moving party will bear
the burden of proof at trial, merely point out that the
evidence in the record is insufficient to support an
essential element of the non-movant's claim or defense.
Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986).
Once the movant carries its initial burden, the burden shifts
to the non-movant to show that summary judgment is
inappropriate. Lodge Hall Music, Inc. v. Waco Wrangler
Club, Inc. 831 F.2d 77, 79 (5th Cir. 1987).
court to conclude that there are no genuine issues of
material fact, the court must be satisfied that no reasonable
trier of fact could have found for the non-movant, or, in
other words, that the evidence favoring the non-movant is
insufficient to enable a reasonable jury to return a verdict
for the non-movant. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 n.4 (1986). In making this
determination, the court should review all the evidence in
the record, giving credence to the evidence favoring the
non-movant as well as the “evidence supporting the
moving party that is contradicted and unimpeached, at least
to the extent that evidence comes from disinterested
witnesses.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 151 (2000). The Court “may not
make credibility determination or weigh the evidence”
in ruling on a motion for summary judgment, and must review
all facts in the light most favorable to the non-moving
party. Id. at 150; First Colony Life Ins. Co. v.
Sanford, 555 F.3d 177, 180 (5th Cir. 2009).