Phillips v. Super Servs. Holdings, LLC

189 F.Supp.3d 640

Jacquelyn M. Phillips, Plaintiff,

v.Super Services Holdings, LLC d/b/a Super Services LLC, et al, Defendants.

CIVIL ACTION NO. 4:14-CV-00950

United States District Court, S.D. Texas, Houston Division.

Signed May 26, 2016

Muhammad S. Aziz, Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, Houston, TX, for Plaintiff.

Lynn S. Castagna, Stephen Peter Bega, Castagna Scott LLP, Austin, TX, for Defendants.

OPINION AND ORDER

MELINDA HARMON, UNITED STATES DISTRICT JUDGE

Pending in the above-referenced negligence action are Defendants' Motion for Partial Summary Judgment on Plaintiff's Negligent Hiring, Negligent Retention, and Negligent Entrustment Claims (Doc. 20) and Defendants' Motion for Partial Summary Judgment on Plaintiff's Gross Negligence Claim (Doc. 21). Having considered the motions, responses, replies, record, and relevant law, the Court is of the opinion that Defendants' motions should be granted for the reasons set forth below.

I. Background

This action arises out of an automobile accident that occurred on May 4, 2014, on Interstate 10 in Columbus, Texas. (Doc. 20-1 at 114.) At the time of the collision, Defendant Sharlena Harris ("Harris") was driving westbound in the middle lane in a tractor-trailer owned by Defendant Super Service Holdings, LLC ("Super Service"). (Doc. 3 at ¶ 9.) Plaintiff Jacquelyn Phillips ("Phillips") was also driving west but in the far left lane. (Doc. 20-2 at 3.) As Phillips was traveling next to Harris, a third vehicle, failing to control its speed, approached Phillips from the rear and hit her. (Id. ) As a result of the impact, Phillips's car began to skid into the middle lane where she was struck by Harris. (Id. ) The force of this second impact caused Phillips's vehicle to turn clockwise across the roadway and veer down an embankment on the north side of the freeway, where it struck a barbed-wire fence. (Id. ) According to Phillips, she and her minor child both suffered multiple injuries as a result of the accident. (Doc. 3 at ¶ 10.) There is no indication that Harris was under the influence of any alcohol, illegal substance, or medication that impaired her ability to drive when the collision occurred. (See Doc. 20-2 at 3–5.)

At the time of the accident, Harris had been employed by Super Service for over a year and a half. (See Doc. 20-1 at 13.) She submitted her original employment application to Super Service on September, 26, 2012. (Id. at 10–13, 82–87.) With her application, she submitted proof of a valid and current Mississippi commercial driver's license ("CDL"). (Id. at 4.) Her application also listed Little Richard Trucking in Canton, Mississippi as her former employer, stated that she had most commonly operated a conventional tractor with a flatbed trailer of 53 feet or more for the company, and listed her dates of employment as August 2011 to September 2012. (Id. at 11–12, 84–85.) Under the traffic convictions/violations section of the application, she listed only one violation in April 2012 for no proof of insurance.¹ (Id. at 11–12, 83.)

After receiving her application, Super Service used a third-party service to run driving-and criminal-background checks on Harris. (Id. at 14, 16, 34, 36–37.) The jurisdictions searched pursuant to these checks included all fifty states as well as various state, national, and international databases. (Id. at 14.) The results confirmed that Harris had a valid CDL, no accident history, and a "clear" motor vehicle report ("MVR"). (Id. at 16, 34, 36–37.) When contacted for a reference, Little Richard Trucking reported that she had no negative employment history and the company would rehire her. (Id. at 22.)

As the next step in the employment process, Super Service required Harris to undergo a pre-employment medical examination, including drug testing, pursuant to the Federal Motor Carrier Safety Administration ("FMCSA") regulations. (Id. at 2–3, 5–9, 40–43.) Her drug tests came back negative and she was cleared for driving with the exception that she had to wear corrective lenses when operating a vehicle. (Id. ) Also pursuant to the FMCSA regulations, Harris was required to take a road test, which she passed, scoring in the top tier of applicants. (Id. at 72–74.) Additionally, she took a HAZMAT test, a written driving test, and was provided with a number of safety guides before beginning her employment. (Id. at 67–71, 75–77.)

In her complaint, Phillips alleges that her injuries and those of her child were a proximate cause of Harris and Super Service's negligence and asserts claims for (1) negligence, (2) negligent hiring, (3) negligent retention, (4) negligent entrustment, (5) respondeat superior, and (6) gross negligence. (Doc. 3 at ¶¶ 12–20.) Phillips bases her claims against Super Service on the argument that Harris was an incompetent or reckless driver and that Super Service knew or should have known of this fact if it had properly investigated, screened, and supervised her. (Id. at ¶¶ 14–16.)

II. Legal Standard

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett , 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewed in the light most favorable to the nonmovant, the court determines that "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 judgment as a matter of law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505.

The movant initially bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact on which the nonmovant bears the burden of proof at trial. Lujan v. Nat'l Wildlife Fed. , 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (citations omitted). "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex , 477 U.S. at 323, 106 S.Ct. 2548. When the moving party makes an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact concerning every element of its cause of action in order to defeat the motion for summary judgment. Edwards v. Your Credit, Inc. , 148 F.3d 427, 431 (5th Cir.1998) ; Nat'l Ass'n of Gov't Emps. v. City Pub. Serv. Bd. , 40 F.3d 698, 712 (5th Cir.1994) ; Morris v. Covan World Wide Moving, Inc. , 144 F.3d 377, 380 (5th Cir.1998). There is no genuine issue for trial if a rational trier could not find for the nonmoving party based on the evidence presented. City Pub. Serv. Bd. , 40 F.3d at 712–13 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 584–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ. , 80 F.3d 1042, 1047 (5th Cir.1996) (internal citation and quotation marks omitted) ("[P]leadings are not summary judgment evidence."); Johnston v. City of Houston , 14 F.3d 1056, 1060 (5th Cir.1994) (quoting Solo Serve Corp. v. Westown e Assoc. , 929 F.2d 160, 164 (5th Cir.1991) ) (for the party opposing the motion for summary judgment, " ‘only evidence—not argument, not facts in the complaint—will satisfy’ the burden.").

Likewise, unsubstantiated assertions, conclusory allegations, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Forsyth v. Barr , 19 F.3d 1527, 1533 (5th Cir.1994). Instead, the nonmovant must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial." Giles v. Gen. Elec. Co. , 245 F.3d 474, 493 (5th Cir.2001) (quoting Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ) (internal quotation marks omitted).

In ruling on a summary judgment motion, the court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant, but the court may not make credibility determinations or weigh the evidence. Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 343 (5th Cir.2007) (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).

III. Analysis

Of Plaintiff's six claims, only four are the subject of Defendants' motions: negligent hiring (Count Two), negligent retention (Count Three), negligent entrustment (Count Four) and gross negligence (Count Six).

A. Sua Sponte Application of Rule 201

After an extensive survey of the governing law and application of the law to the record here, the Court has determined that the Mississippi Driver License Record citations Plaintiff presented as evidence of Harris's incompetence or recklessness could be determinative to the outcome of the case, if the Court could ascertain the basis for and date of each conviction. (See Doc. 22-3 at 3–4.) Although both parties acknowledged the driver's record and listed the types of citations found therein, they did not explain what citation each code corresponded to so the Court could match the year of to the reason for each conviction. As a result, the Court took judicial notice² of version 5.1.0 of the American Association of Motor Vehicle Administrators ("AAMVA") Code Dictionary ("ACD"),³ which is a set of codes used nationwide to identify the types of driver convictions and reasons for driver withdrawals that...