United States District Court, N.D. Texas, Dallas Division
KEVIN L. BAIRD, Plaintiff,
OTGONBAATAR SHAGDARSUREN & DBN CARRIER, INC., Defendants.
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion for Partial Summary
Judgment (Doc. 88) against Plaintiff Kevin Baird. For the
reasons that follow, the Court GRANTS IN
PART and DENIES IN PART the motion.
Plaintiff's Accident with Defendant Shagdarsuren
case arises from a collision between a car and
tractor-trailer. Plaintiff Kevin Baird alleges that in
November of 2015, he and Defendant Otgonbaatar Shagdarsuren
were driving on a service road, when Defendant Shagdarsuren
made a right-hand turn with his tractor-trailer from the
middle lane and collided with Plaintiff's car. Doc. 32,
Pl.'s Second Am. Compl., ¶ 6.
Shagdarsuren explains that he was exiting from the freeway
and needed to turn right, but he was unable to switch into
the right lane due to the amount of cars on the frontage
road. Doc. 90-1, Defs.' App., 40 (Shagdarsuren's
Dep.). Thus, he instead attempted to turn from the
middle lane. See Id. at 39-40. At this
point, Plaintiff was planning to pass Defendant
Shagdarsuren's tractor-trailer by driving in the
right-hand lane. See Id. at 13-14 (Baird's
Dep.). Defendant Shagdarsuren contends that he thought he
could make the turn before Plaintiff's car passed him on
the right. See Id. at 36-37 (Shagdarsuren's
Dep.). But, as Plaintiff explains, Defendant Shagdarsuren
“turn[ed] right into [him]” and never signaled
that he was turning. Id. at 13-14 (Baird's
officer responding to the accident filled out a police
report, and he identified one “[c]ontributing
factor” to the accident: Defendant Shagdarsuren
performed a lane change when it was unsafe to do so. See
Id. at 3, 8 (Crash Report and Crash Report Code Sheet).
The officer also noted two additional potential contributing
factors: distraction in Defendant Shagdarsuren's vehicle
and Defendant Shagdarsuren's inattention. Id.
the accident, Plaintiff contends, Defendant Shagdarsuren was
acting as an employee-driver for Defendant DBN Carrier, Inc.
Doc. 32, Pl.'s Second Am. Compl., ¶ 7. Defendant
Shagdarsuren admits that on the day of the accident, he
inaccurately logged his hours of driving for Defendant DBN by
one-and-a-half hours. Doc. 97-1, Pl.'s App., 142
(Shagdarsuren's Dep.). Further, he admits that his
driving log was inaccurate by four hours on the day before
the incident. See Id. at 147.
Defendant Shagdarsuren did not disclose the accident to
Defendant DBN for nearly two weeks. Doc. 90-1, Defs.'
App., 75 (Lkhamsuren's Dep.). And following the accident,
Defendant Shagdarsuren failed to take a drug test, though he
knew that he was supposed to. Doc. 32, Pl.'s Second Am.
Compl., ¶ 10; Doc. 90-1, Defs.' App., 40-41
(Shagdarsuren's Dep.). He was ultimately fired from
Defendant DBN in January of 2016. Doc. 90-1, Defs.' App.,
76 (Lkhamsuren's Dep.). Moreover, the U.S. Department of
Transportation (DOT) fined Defendant DBN for Defendant
Shagdarsuren's failure to take the post-accident,
drug-and-alcohol test, as well as for Defendant DBN's
failure to properly maintain their driver qualification
files. Doc. 32, Pl.'s Second Am. Compl., ¶ 11; Doc.
97-1, Pl.'s App., 251-53 (DOT Penalty Notice).
Defendant Shagdarsuren's Driving Background
to his employment with Defendant DBN, Defendant Shagdarsuren
lived in Mongolia, where he drove a box truck for
approximately six years. Doc. 90-1, Defs.' App., 31-32
(Shagdarsuren's Dep.). Upon moving to the United States
in 2003, Defendant Shagdarsuren drove only a passenger car
until 2014. Id. at 32. In June of 2014, Defendant
Shagdarsuren obtained a California commercial driver's
license upon attending a two-to-three week training.
Id. at 27-28; 47 (Shagdarsuren's Driving
DBN hired Defendant Shagdarsuren in September of 2014. Doc.
97-1, Pl.'s App., 47 (Lkhamsuren's Dep.). Though
Defendant DBN conducted a driving test for Defendant
Shagdarsuren before hiring him, he received only checkmarks
for each driving category-not ratings, as called for on the
test form. See Id. at 277 (Shagdarsuren's Road
Test). Further, the test form is blank with respect to the
examiner's name and the type of equipment used for the
test. See Id. While Defendant DBN's President,
Bayasgalan Lkhamsuren,  indicates that she believes the form
was completed by her brother-in-law, a then-employee for
Defendant DBN, see id. at 16, 49 (Lkhamsuren's
Dep.), her brother-in-law states that the signature on the
form is not his. Id. at 292 (Batulzil's Dep.).
Likewise, he denies signing Defendant Shagdarsuren's
Certificate of Driver's Road Test. Id. at 293.
from the accident with Plaintiff, Defendant Shagdarsuren has
two driving violations on his California driving record.
See Doc. 90-1, Defs.' App., 47
(Shagdarsuren's Driving Record). The first was his
failure to stop at a stop sign in October of 2013, for which
he received a ticket. Id. The second was an accident
that took place in December of 2014. Id. Defendants
characterize the accident as a “minor fender-bender,
” and Plaintiff does not suggest otherwise. Doc. 89,
Defs.' Br., 14; see generally Doc. 96, Pl.'s
Plaintiff's Claims Against Defendants Shagdarsuren and
Plaintiff seeks to recover damages incurred as a result of
the accident with Defendant Shagdarsuren. See Doc.
32, Pl.'s Second Am. Compl., ¶ 16. Plaintiff brings
the following causes of action: (1) negligence and gross
negligence against Defendants Shagdarsuren and DBN based on
Defendant Shagdarsuren's actions; and (2) negligent and
grossly negligent entrustment, hiring, retention,
supervision,  and training against Defendant DBN. Doc.
32, Pl.'s Second Am. Compl., 3-5. Defendants move for
summary judgment on all claims except the negligence claim
premised on Defendant Shagdarsuren's actions.
See Doc. 89, Defs.' Br., 8-22.
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “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). The substantive law governing a matter determines
which facts are material to a case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The
summary-judgment movant bears the burden of proving that no
genuine issue of material fact exists. Latimer v.
Smithkline & French Labs., 919 F.2d 301, 303 (5th
Cir.1990). Usually, this requires the movant to identify
“those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks
omitted). But if the non-movant ultimately bears the burden
of proof at trial, the summary-judgment movant may satisfy
its burden by pointing to the mere absence of evidence
supporting an essential element of the non-movant's
claim. See Austin v. Kroger Tex., L.P., 864 F.3d
326, 335 n.10 (5th Cir. 2017).
the summary-judgment movant has met this burden, the burden
shifts to the non-movant to “go beyond the pleadings
and designate specific facts” showing that a genuine
issue exists. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir.1994) (per curiam) (citing
Celotex, 477 U.S. at 325). “This burden is not
satisfied with ‘some metaphysical doubt as to the
material facts,' by ‘conclusory allegations,'
by ‘unsubstantiated assertions,' or by only a
‘scintilla' of evidence.” Id.
(citations omitted). Instead, the non-moving party must
“come forward with specific facts showing that there is
a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quotation marks omitted). “[C]ourts are
required to view the facts and draw reasonable inferences in
the light most favorable to the party opposing the summary
judgment motion.” Scott v. Harris, 550 U.S.
372, 378 (2007) (alterations incorporated and quotations
marks omitted). But the court need not “sift through
the record in search of evidence to support a party's
opposition to summary judgment.” Ragas v. Tenn. Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998) (citation
and quotation marks omitted). If the non-movant is unable to
make the required showing, the court must grant summary
judgment. Little, 37 F.3d at 1076.
assert that Plaintiff lacks evidence to support his: (1)
gross negligence claim against Defendant Shagdarsuren based
on Defendant Shagdarsuren's actions; (2) gross negligence
claim against Defendant DBN based on Defendant
Shagdarsuren's actions; and (3) negligent and grossly
negligent entrustment, hiring, retention, and training claims
against Defendant DBN. See Doc. 89, Defs.' Br.,
8-22. Below, the Court addresses the merits of
Defendants' motion as to each claim. Ultimately, the
Court concludes that summary judgment in Defendants'
favor is warranted as to all claims except Plaintiff's
negligent training claim against Defendant DBN.
Gross Negligence Claim Against Defendant Shagdarsuren
Based on His Actions
has not raised a genuine dispute of material fact regarding
Defendant Shagdarsuren's gross negligence. Under Texas
law, exemplary damages are only available when a claimant
proves by clear-and-convincing evidence that the harm
suffered is the result of fraud, malice, or gross negligence.
Tex. Civ. Prac. & Rem. Code § 41.003(a). The
clear-and-convincing evidence standard controls at the
summary-judgment stage, meaning that a plaintiff alleging
gross negligence must offer “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 . . .
.'” Partida Aranda v. YRC Inc.,
2019 WL 2357528, at *3 (N.D. Tex. June 4, 2019) (citations
law defines gross negligence as:
“an act or omission (1) which when viewed objectively
from the standpoint of the actor at the time of its
occurrence involves an extreme degree of risk, considering
the probability and magnitude of the potential harm to
others; and (2) of which the actor has actual, subjective
awareness of the risk involved, but nevertheless proceeds
with conscious indifference to the rights, safety, or welfare
Baker v. BNSF Ry. Co., 2010 WL 4063203, at *4 (N.D.
Tex. Oct. 13, 2010) (quoting Tex. Civ. Prac. & Rem. Code
§ 41.001(11)). “Circumstantial evidence is
sufficient to prove either element.” Lee Lewis
Constr., Inc. v. Harrison, 70 ...