Malone v. Spence

1

HOWARD MALONE and SUSAN MALONE, Plaintiffs, v. LEO SPENCE, JASON BULLARD, and CRST EXPEDITED, INC., Defendants.

Civil Action No. 3:21-CV-2047-BH

United States District Court, N.D. Texas, Dallas Division

August 7, 2023

Consent Case^[1]

MEMORANDUM OPINION AND ORDER

IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

Based on the relevant filings, evidence, and applicable law Defendant Leo Spence and CRST Expedited, Inc.'s Motion for Partial Summary Judgment, filed February 17 2023 (doc. 98), is DENIED; the Motion for Summary Judgment on Plaintiffs' Negligence and Gross Negligence Claims against Defendant Jason Bullard, filed February 17, 2023 (doc. 101), is GRANTED and Plaintiffs' Motion for Leave to File Surreply Brief, filed April 18, 2023 (doc. 132), is DENIED as moot.

I. BACKGROUND

At approximately 3:30 a.m. on April 17, 2020, a tractor-trailor driven by Leo Spence (Driver), who worked for CRST Expedited, Inc. (Company), ran off a highway and struck multiple vehicles parked in a convenience store parking lot. (docs. 46 at 1; 120-20 at 8; 120-43; 120-44.)^[2]Sleeping in two of those vehicles were Howard and Susan Malone (Plaintiffs), who sustained major injuries as a result. (doc. 120-63.) Driver told responding paramedics and a police officer that he had fallen asleep at the wheel. (docs. 120-11; 120-47.)

Company is a commercial motor carrier subject to the Federal Motor Carrier Safety Regulations (FMCSR).^[3] (doc. 120-20 at 31.) It uses a two-person driver system for long-distance deliveries; one person drives while the other one rests in the truck's sleeper berth. (doc. 120-22 at 3-4.) It does not have a formal fatigue policy, but drivers receive training on fatigued driving as part of the on-boarding process and are specifically instructed that the Hours of Service requirement is designed to address driver fatigue. (docs. 120-14 at 27-29; 120-51; 120-57.) They are also instructed to include sleeper berth time in their driver logs. (doc. 120-14 at 27-29.) Company does not have a system to monitor driver logs and flag when a driver's sleeper berth time is not accurately reported. (docs. 120-12; 120-15.)

On September 30, 2019, Company hired Driver as an over-the-road truck driver. (doc. 120 29.) At the time, he had no professional experience driving a tractor-trailer, but he was trained to drive an 18-wheeler and had a commercial driver's license (CDL). (doc. 120-16 at 3.) His job application showed that he had worked as a limousine driver for approximately four years, and that he was briefly hired for a truck driving job at Swift Transportation in July 2014, but was terminated the same month for falsifying his job application. (docs. 100 at 6-7; 120-24.) A criminal background investigation performed by Company showed a prior felony conviction. (doc. 120-4.) Company's decision to hire Driver was based, in part, on his clean driving record and safe driving behaviors. (doc. 100 at 24-25.)

Prior to his hiring, Driver signed an agreement stating that he had received and would adhere to Company's policy pertaining to moving violations. (doc. 120-58 at 2.) It provides that he may be subject to discipline or termination for, among other things, operating a commercial motor vehicle (CMV) “while ill, fatigued, or driving after being declared Out-of Service under the Hours of Service regulations.” (Id.)

After he was hired, Driver received driver safety training at Company's Iowa facility. (doc. 103 at 12.) From October 17 to November 1, 2019, a supervising trainer was assigned as his codriver. (doc. 120-21 at 4.) During that period, Driver's logs properly reported the amount of time he spent in the sleeper berth. (Id.; doc. 120-69 at 8-27.) Beginning on November 21, 2019, Driver stopped reporting his sleeper berth time in his logs. (docs. 120-21 at 4; 120-69 at 51-118.)

While driving for Company, Driver had two preventable accidents on November 25, 2019 and January 25, 2020; he received a traffic citation on January 28, 2020. (docs. 120-34; 120-35.) On February 3, 2020, Company required Driver to attend a safety review because of those accidents. (doc. 120-48.)

While out on a delivery for Company on February 10, 2020, Driver emailed Company that “he got off the truck to go home” and was “done with the company.” (doc. 120-36.) On February 14, 2020, Company reached out to Driver and was told that “things got difficult between him and his wife with him being on the road all the time and away from her,” and that “they decided it would be better going another route with something more local.” (Id.)

On February 17, 2020, Driver was hired by another trucking company but was terminated two days later on February 19, 2020, because it found him “to be unqualified as a driver.” (doc. 12037.) On February 21, 2020, Company offered Driver incentive pay to return to work; he accepted and returned to work the same day. (doc. 120-38.)

From March 17 to April 17, 2020, Alcion DeSouza (Co-driver) was assigned to drive with Driver. (doc. 120-69 at 74-118.) On April 16, 2020, while Driver was in the sleeper berth, Co-driver drove to Company's terminal in Dallas, Texas, to pick up a load for delivery in Colorado. (docs. 100 at 14; 17-18.) Driver and Co-driver left the terminal at approximately 10:00 p.m., with Driver driving and Co-driver in the sleeper berth. (Id.) Jason Bullard, Company's safety trainer who worked at the Dallas terminal (Safety Trainer), did not see or visit with Driver when he was at the terminal. (doc. 103 at 9-10, 12.)

Driver and Co-driver later stopped at a truck stop at approximately 11:30 p.m. to shower and eat. (doc. 100 at 18.) Co-driver was exhausted and suggested that they stay to get some sleep and leave at dawn, but Driver responded that he was doing “very well”, and that they would not be able to sleep well even if they did stay because they would be receiving messages from Company about stopping. (Id. at 18-19.) At approximately midnight on April 17, 2020, Driver drove out of the truck stop and continued driving on the highway, and Co-driver went to the sleeper berth to rest. (Id.)

Three and half hours later, at approximately 3:30 a.m., the tractor-trailer ran off the highway at a speed of over 60 mph, crossed over a ditch and road, and continued into a convenience store parking lot, where it struck multiple parked vehicles. (docs. 120-20 at 8; 120-43; 120-44.) Plaintiffs were sleeping in two of the vehicles and sustained; major injuries from the collision. (doc. 120-63.) Driver told responding paramedics and a police officer that he had fallen asleep at the wheel before the crash. (docs. 120-11; 120-47.)

Plaintiffs sued Company, Driver, and Safety Trainer (Defendants) in state court for negligence, negligence per se, and gross negligence. (See doc. 1 at 23-25, 38-39.) After the case was removed to federal court, Plaintiffs filed an amended complaint alleging that Driver failed to maintain proper control of the truck to avoid the collision and operated a CMV while unqualified, fatigued, and in violation of local, state, and federal law. (doc. 46 at 5-6.) They also claimed that Company and Safety Trainer failed to implement and enforce a fatigue policy; hired and allowed an unfit and/or fatigued driver to operate a tractor-trailer; failed to train and supervise Driver; failed to monitor and/or ensure Driver's driver logs were compliant; and allowed and/or encouraged Driver to operate a CMV in violation of local, state, and federal law. (Id. at 6-9.) They also allege that Driver's “lack of qualifications, unsafe and inattentive track record, non-compliant driving logs, fatigue and personal struggles and/or stress directly led to the crash that caused” their severe injuries, and that they are entitled to recover exemplary damages because Defendants' negligent acts and omissions “constitute an entire want to care as to indicate that such acts and omissions were the result of conscious indifference to the rights, safety, and welfare of others.” (Id. at 9-10.)

On February 17, 2023, Defendants moved for summary judgment on all claims against Safety Trainer, and for partial summary judgment on the gross negligence claims against Driver and Company and the negligence claims against Company. (docs. 98; 101.) Plaintiffs responded on March 24, 2023 (docs. 119; 120), and Defendants replied on April 6, 2023 (doc. 128.)

II. EVIDENTIARY OBJECTIONS

Driver and Company object to Plaintiffs' expert reports because they did not include an affidavit or declaration from their experts. (doc. 128 at 6-8.)

A party seeking summary judgment may rely on any form of evidence listed in Rule 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). This includes expert testimony that meets the admissibility requirements of Federal Rules of Evidence 702. See Fed.R.Evid. 702. “At the summary judgment stage, materials cited to support or dispute a fact need only be capable of being ‘presented in a form that would be admissible in evidence.'” LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed.R.Civ.P. 56(c)(2)) (emphasis original). While the form of the summary judgment evidence need not be admissible, the content of the evidence must meet evidentiary requirements. See Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017).

Here Driver and Company generally object to Plaintiffs' expert reports as inadmissible summary judgment evidence on the ground that they are unsworn. (doc. 128 at 8.) As discussed, courts “ may consider evidence at the summary judgment stage if that evidence contains facts which would be admissible at trial, even if that evidence is unsworn or in a presently inadmissible form.” Blueitt v. Crestbrook Ins. Co., __F.Supp.3d...