Gallagher v. Lucas

KAREN GALLAGHER, Plaintiff, v. GEORGE E LUCAS JR, Defendant.

SA-20-CV-00072-FB

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

December 16, 2020

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Fred Biery:

This Report and Recommendation concerns Defendant's Motion to Dismiss for Failure to State a Claim for Gross Negligence [#26]. All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#5], and the undersigned has authority to enter a recommendation as to Defendants' Motion for Summary Judgment pursuant to 28 U.S.C. § 636(b)(1)(B).

On September 22, 2020, Defendant filed a motion to dismiss. The Court reviewed the motion and determined that Defendant's arguments were more properly raised in a motion for summary judgment, not a motion to dismiss. As such, the undersigned converted Defendant's motion to dismiss into a motion for summary judgment under Rule 12(d) and allowed additional time for the parties to supplement their briefing and submit evidence [#35]. Plaintiff filed Supplemental Briefing [#40]; Defendant did not.

In reviewing Defendant's motion, the undersigned has therefore considered Plaintiff's Response [#29], Defendant's Reply [#34], and Plaintiff's Supplemental Briefing [#40]. Having considered the written filings before the undersigned, the record in this case, and the governing law, the undersigned will recommend that Defendant's motion for summary judgment on Plaintiff's gross negligence claim [#26] be DENIED.

I. Background

This lawsuit arises out of a motor-vehicle accident occurring on November 26, 2018 on Interstate 10 ("I-10") in Seguin, Texas. (Am. Compl. [#17] at ¶ 5.) Plaintiff Karen Gallagher a/k/a Karen Schmitz filed this lawsuit on January 17, 2020 against Defendant George E. Lucas, Jr., alleging various theories of negligence related to the accident. According to the Amended Complaint before the Court, Plaintiff was a passenger in a vehicle struck by Defendant's vehicle and suffered severe and permanent bodily injuries from the collision Plaintiff alleges that Defendant was travelling "at a high rate of speed while racing another driver" and "violently" collided with the vehicle in which Plaintiff was a passenger. (Id.) Defendant now moves for summary judgment on Plaintiff's gross negligence claim, arguing that Plaintiff fails to state this cause of action as recognized under Texas law. (Def. Motion [#26] at 2.)

II. Summary Judgment Standard

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only 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 party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which itbelieves demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court will view the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). "After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted." Westphal, 230 F.3d at 174.

III. Summary Judgment Record

Construing the evidence most favorably to the non-movant Plaintiff, the summary judgment record establishes the following.

It is undisputed that on November 26, 2018 at approximately 2:55pm, Plaintiff was a front seat passenger in a 2015 Lexus LS 460 being operated by her husband and traveling in the westbound left lane on I-10 in Sequin, Texas. (Am. Compl. [#17] at ¶ 5; Def. Answer [#23] at ¶ 5.) Defendant was driving a 2014 Chevrolet 1500 pickup truck westbound on I-10 and struck Plaintiff's vehicle from the rear. (Am. Comp. [#17] at ¶ 5; Def. Motion to Dismiss [#26] at 1.)

That same day, an officer from the Texas Department of Public Safety investigated the collision. In the report, the officer concluded that, as other vehicles on I-10 were slowing downdue to traffic congestion, Defendant was traveling "at a high rate of speed," and he "could not stop in time to prevent" the collision. (DPS Report [#29-1] at 2.)

On September 10, 2020, Denver Headings-Cantu, witness to the collision, testified in a deposition. (Cantu Dep. [#29-2].) Ms. Cantu testified that she saw Defendant's vehicle and a black SUV driving aggressively on I-10, weaving through and tailgating other vehicles. (Id. at 11.) She said that the two vehicles were traveling very close to each other "as if they were trying to get in front of one another." (Id. at 14.) Ms. Cantu testified that she was driving 83 m.p.h. and because Defendant's vehicle and the black SUV were going much faster than her vehicle, she estimated they were traveling at 100 m.p.h. (Id.) She said that Defendant's vehicle and the black SUV did not pass her car "nicely" but that "it was a jerk and like gas to the floor type of situation." (Id. at 15.)

On June 24, 2020, Dr. Eric Moody, an accident reconstruction expert, issued a report on this collision. (Dr. Moody Report [#29-3].) Dr. Moody inspected Defendant's vehicle on May 1, 2020 and conducted a scene investigation on May 13, 2020. (Id. at 3.) He reviewed the Bosch Crash Data Retrieval (CDR report) generated with the Airbag Control Module (ACM) data downloaded from Plaintiff's vehicle. (Id.) Dr. Moody reported that Plaintiff's vehicle decelerated from 74.6 m.p.h. to 36 m.p.h. 4.9 seconds prior to being struck by Defendant's vehicle. (Id. at 6.) He reported that this was "moderate braking." (Id.) As a result of the crash, the post-impact speed of Plaintiff's vehicle was 52 to 53 m.p.h. (Id.) Dr. Moody's reconstruction, using the principal of Conservation of Linear Momentum, indicated that Defendant's vehicle was likely traveling at a speed of 68 m.p.h. when it struck Plaintiff's vehicle. (Id.) Dr. Moody reported that Plaintiff vehicle's brake time "should have provided [Defendant] ample time to detect, perceive, and react to the slowing vehicles ahead. The factthat [Defendant's] vehicle struck the rear of [Plaintiff's] vehicle while still traveling at [] 68 m.p.h. indicates that [Defendant] had decelerated little, if any, prior to impacting the rear of [Plaintiff's] vehicle." (Id.) Dr. Moody also reported that the driver of Plaintiff's vehicle did not cause or contribute to the collision in any way. (Id. at 7.)

On October 23, 2020, Moe Sanchez, a truck driver who witnessed the collision, testified in a deposition. (Sanchez Dep. [#40-1].) Mr. Sanchez testified that he was traveling between 70 and 75 m.p.h. when Defendant passed him on the right and nearly "clipped [Sanchez's] front bumper" at what Mr. Sanchez estimated was over 100 m.p.h. (Id. at 10.) He testified that Defendant and another SUV were bobbing and weaving in and out of traffic. (Id.)

IV. Analysis

The evidence in the record generates material issues of fact that preclude granting Defendant's motion for summary judgment on Plaintiff's gross negligence claim. Plaintiff alleges that Defendant was grossly negligent in the operation of his vehicle before and during the collision of his vehicle into Plaintiff's vehicle on November 26, 2018. (Am. Compl. [#17] at ¶ 5.) Defendant contends that Plaintiff cannot establish her claim of gross negligence against Defendant as a matter of law. The undersigned disagrees.

Texas law governs this diversity action. R & L Inv. Prop., L.L.C. v. Hamm, 715 F.3d 145, 148-49 (5th Cir. 2013). Under Texas law, a plaintiff is entitled to punitive damages upon a showing of gross negligence. Hansen v. Johns-Manville Prod. Corp., 734 F.2d 1036, 1040 (5th Cir. 1984). To prevail on his claim of gross negligence against Defendant, Plaintiff must prove both an objective and subjective component of her claim: (1) that viewed objectively from the standpoint of Defendant at the time of the events underlying this suit, the act or omission of Defendant involved an extreme degree of risk, considering the probability and magnitude of thepotential harm to others; and (2) that Defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. See Tex. Civ. Prac. & Rem. Code § 41.001(11); U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).

Under the objective component, "extreme risk" is not a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff's serious injury. U-Haul Int'l, 380 S.W.3d at 137 (citations omitted). The objective prong (the degree of risk) is viewed from the time of the accident, not in hindsight. See N. Am. Van Lines, Inc. v....