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Neddo v. New Prime, Inc.

United States District Court, W.D. Texas, San Antonio Division

June 20, 2019

JOSHUA NEDDO, GERALDINE NEDDO, INDIVIDUALLY AND AS NEXT FRIEND OF KAILEYAH NEDDO, A MINOR, Plaintiffs,
v.
NEW PRIME, INC. AND BENJAMIN JAMES DOUGHERTY, Defendants.

          ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE.

         On this 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' Motion.

         BACKGROUND

         This 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 collision).

         At 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 at ¶9.

         On 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.

         Plaintiffs 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 Plaintiffs' injuries.

         Plaintiffs 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 ¶24-32.

         Defendants 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.

         DISCUSSION

         A. Standard of Review

         The 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).

         For a 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).

         B. ...


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