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Denham v. Bark River Transit, Inc.

United States District Court, S.D. Texas, Corpus Christi Division

October 3, 2019

JANET DENHAM, Plaintiff,
v.
BARK RIVER TRANSIT, INC., et al, Defendants.

          OPINION AND ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT

          B. JANICE ELLINGTON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. BACKGROUND

         a. Complaint and Claims

         In her 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).

         b. Summary Judgment Evidence

         A crash 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.).

         Hudson 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]).[1]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[30]). 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[47]). 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[50]). 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[55]). He braked lightly due to the water. (Id. at 14[56]). Hudson was not on his phone at the time of the accident. (Id. at 16[64]). He did not believe there was anything he could have done differently to avoid the accident. (Id. at 20 [78]).

         Denham 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[19]). 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[27]).

         Don Vanenkevort testified to the following in a deposition. (D.E. 24-3). He was a part-owner of Bark River. (Id. at 2[7]). He was already in Corpus Christi on the day of the accident and called Hudson to see where he was. (Id. at 11[42]). It was raining heavily that morning. (Id. at 12[45]). When he was driving a truck, he had a hands-free phone system. (Id. at 13[50]). 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]).

         Hudson's 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).

         II. DISCUSSION

         a. Summary Judgment Standard

         Summary 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. ...


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