United States District Court, S.D. Texas, Corpus Christi Division
OPINION AND ORDER ON MOTION FOR PARTIAL SUMMARY
JANICE ELLINGTON, UNITED STATES MAGISTRATE JUDGE
Janet Denham filed this diversity lawsuit against Defendants
Ira Wade Hudson and Bark River Transit, Inc. (“Bark
River”), alleging several claims under Texas law
arising from a highway collision between Hudson's
tractor-trailer and Denham's pick-up truck. The parties
consented to having a magistrate judge conduct all
proceedings in this case. (D.E. 16 at 1; D.E. 17 at 1). Now
pending is Defendants' motion for partial summary
judgment (D.E. 24), to which Denham has responded (D.E. 28).
For the reasons discussed further below, Defendants'
motion for partial summary judgment is granted in part and
denied in part, and Denham's claim regarding negligent
hiring, screening, supervision, and retention is dismissed.
Complaint and Claims
complaint, Denham alleges that she was driving south on
Interstate 37 when Hudson, also traveling south, collided
with her vehicle in a tractor-trailer and caused significant
injuries to her. (D.E. 1 at 2). She raises five specific
claims, including claims of: (1) negligence against Hudson;
(2) gross negligence against Hudson; (3) respondeat
superior negligence against Bark River; (4) negligent
hiring, retention, training, and/or entrustment against Bark
River; and (5) gross negligence against Bark River.
(Id. at 2-6). Denham alleges that, as a result of
the accident, she suffered severe injuries to her neck, back,
and other parts of her body, along with mental pain,
suffering, and anguish. (Id. at 6). Denham seeks
damages for pain and suffering, mental anguish, medical
expenses, physical impairment and disfigurement, loss of
wages, and loss of earning capacity. (Id. at 7).
Summary Judgment Evidence
report prepared by a police officer indicated that at 7:12
a.m. on September 28, 2017, the officer was notified of an
accident on the interstate. (D.E. 24-1). The officer
indicated that Denham was driving in the right lane, while
Hudson was driving in the middle lane. (Id. at 3).
Hudson hit a puddle, which caused his trailer to hydroplane
and collide with Denham's vehicle. (Id.).
testified to the following in a deposition. (D.E. 24-2). He
worked part-time for Bark River when the company was involved
in storm cleanup. (Id. at 5[17-19]).If he needed to
communicate with Bark River while he was driving, he would
use the speaker phone function of his cell phone-a flip
phone-and put it on the dashboard. (Id. at
7[26-27]). At the time of his accident with Denham, Hudson
was completing a multi-day drive from Michigan to Corpus
Christi to help clean up after Hurricane Harvey.
(Id. at 8). On the day of the accident, it was
drizzling until about ten miles from where the accident
occurred, when it began to rain severely. (Id. at
12). Hudson was in the middle of three lanes when traffic
in the right lane began to slow down. (Id. at
12-13[48-49]). He slowed down to around 25 or 30 miles per
hour, and a car from the left lane merged in front of him.
(Id. at 13). Hudson slowly applied the brakes,
but the road was covered in a severe amount of water and his
trailer slid to the right. (Id.). Hudson felt a
small bump, and he eventually stopped on the shoulder.
(Id.). He thought that there was eight to ten inches
of water on the road. (Id. at 14). He braked
lightly due to the water. (Id. at 14). Hudson
was not on his phone at the time of the accident.
(Id. at 16). He did not believe there was
anything he could have done differently to avoid the
accident. (Id. at 20 ).
testified to the following in a deposition. (D.E. 28-6). At
the time of the accident, it was raining heavily and traffic
on the highway was slowing to around 30 miles per hour.
(Id. at 5[18-19]). She previously passed Hudson to
avoid the spray from his truck. (Id. at 5).
Denham did not see him again until he collided with her, and
he went past her moving “pretty fast” with the
truck swerving side to side. (Id. at 5-6[20-21]).
She was almost stopped at the time of the collision and heard
brakes squealing, but she did not see Hudson run into her.
(Id. at 6[22-23]). After Denham and Hudson pulled
over, Hudson let her use his phone. (Id. at 7).
Vanenkevort testified to the following in a deposition. (D.E.
24-3). He was a part-owner of Bark River. (Id. at
2). He was already in Corpus Christi on the day of the
accident and called Hudson to see where he was. (Id.
at 11). It was raining heavily that morning.
(Id. at 12). When he was driving a truck, he had
a hands-free phone system. (Id. at 13). He did
not remember talking to Hudson shortly before the accident,
but he knew Hudson had a flip phone and had to manually enter
any phone number in order to make a call. (Id. at
14[54-55]). He agreed that it would be dangerous for Hudson
to be driving the truck in heavy rain and dialing a number on
his phone. (Id. at 15[57-58]).
cell phone records indicate that, on the morning of the
accident, he received calls from Vanenkevort at 6:54 a.m. and
7:05 a.m., and he made calls to Vanenkevort at 7:03 a.m.,
7:07 a.m., and 7:17 a.m. (D.E. 28-4 at 13). At 7:09 a.m., a
few minutes after the accident, Denham borrowed his phone to
call her work. (Id.; D.E. 28-7 at 1).
Summary Judgment Standard
judgment is proper if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). A genuine issue exists
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
Court must examine “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52. In making this
determination, the Court must consider the record as a whole
by reviewing all pleadings, depositions, affidavits and
admissions on file. Caboni v. Gen. Motors Corp., 278
F.3d 448, 451 (5th Cir. 2002). The Court may not weigh the
evidence or evaluate the credibility of witnesses.
Id. The Court must view the facts in the light most
favorable to the non-moving party and draw all reasonable
inferences in its favor. Salazar-Limon v. City of
Houston, 826 F.3d 272, 274-75 (5th Cir. ...