COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-132-CV
ELIZABETH SANTANA, INDIVIDUALLY APPELLANT AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ROJELIO SANTANA, AND AS NEXT FRIEND OF DIANA SANTANA, ROJELIO SANTANA, JR., MARISSA SANTANA, PAULINE SANTANA AND FREDERICO SANTANA
V.
ARPIN AMERICA MOVING SYSTEM, APPELLEES LLC AND PAUL ARPIN VAN LINES, INC.
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION 1
I. INTRODUCTION
This is a summary judgment appeal. Appellant Elizabeth Santana,
individually and as personal representative of the estate of Rojelio Santana, and
1 … See Tex. R. App. P. 47.4. as next friend of Diana Santana, Rojelio Santana, Jr., Marissa Santana, Pauline
Santana, and Frederico Santana (hereinafter collectively referred to as
“Appellant”) raises twelve points challenging the trial court’s summary
judgments for Appellees, Arpin America Moving System, LLC (“AAMS”) and
Paul Arpin Van Lines, Inc. (“PAVL”). Appellant claims that the summary
judgment evidence establishes that genuine issues of material fact exist on her
claims against both AAMS and PAVL. For the reasons set forth below, we will
affirm the trial court’s summary judgment.
II. F ACTUAL B ACKGROUND
Rojelio “Rocky” Santana (“Rocky”) was a commercial driver; on August
7, 2004, in the capacity of an independent contractor, he drove a commercial
vehicle owned by AAMS and leased by PAVL,2 hauling household goods from
Nesbit, Mississippi, to Dallas, Texas. Independent contract drivers like Rocky
were permitted to hire “lumpers” to help them load and unload the trucks; the
independent contract drivers were responsible for supervising and paying the
“lumpers” they chose to hire. AAMS and PAVL maintain no contract or
relationship with “lumpers” hired by the driver.
2 … PAVL is a federally registered motor carrier with a Department of Transportation (“DOT”) number.
2 Rocky decided to hire two “lumpers,” Alejandro Cisneros and Alejandro
Ramirez, to assist him on the trip. Per AAMS policy, “lumpers” are not
permitted to operate trucks under any circumstances. At some point during the
return trip, Rocky permitted Ramirez—who did not possess a commercial
driver’s license—to drive the eighteen wheeler. AAMS and PAVL did not know
Rocky had hired Cisneros and Ramirez as “lumpers” for the trip and did not
authorize Ramirez to drive the truck. On August 7, 2004, while Ramirez was
driving the truck, it struck a bridge support pillar; Rocky, Cisneros, and Ramirez
were all killed.
First responders at the scene referred to the three victims as John Doe
A, B, and C. The first responders all testified that John Doe A was driving;
pictures of the victims taken at the scene of the accident were referred to in
the depositions of the first responders and in the summary judgment affidavits
of persons acquainted with Rocky and conclusively establish that Rocky was
not John Doe A.3
3 … Officer Ron Parker first indicated in his initial accident report that Rocky had been driving, but he later submitted an amendment to the accident report stating that Ramirez had been driving. In any event, Officer Parker, as well as all of the other first responders, consistently and affirmatively testified that John Doe A was the driver and pictures of John Doe A are not pictures of Rocky.
3 Rocky’s wife brought a wrongful death suit on her own behalf and on
behalf of Rocky’s minor children. Ultimately, the trial court granted summary
judgments for AAMS and for PAVL on all of Appellant’s claims against them.
Appellant perfected this appeal, raising twelve points.4
III. A PPELLANT’S C AUSES OF A CTION; AAMS’s AND PAVL’s T RADITIONAL AND N O-E VIDENCE M OTIONS FOR S UMMARY J UDGMENT
Appellant pleaded causes of action against AAMS for negligence,
negligence per se, res ipsa loquitur, negligent entrustment/negligent supervision,
and gross negligence. Appellant pleaded causes of action against PAVL as a
worker’s compensation nonsubscriber for gross negligence under the “election
of remedies” doctrine and for vicarious liability under the doctrines of
respondeat superior, statutory employee, and apparent agency.
AAMS filed a no-evidence motion for summary judgment, claiming that
no evidence exists to support the causation element of Appellant’s negligence
per se claims; that res ipsa loquitur is not a cause of action recognized in Texas;
that no evidence of proximate cause exists concerning Appellant’s negligence
claims; that no evidence exists in Appellant’s negligent entrustment claims that
4 … Appellant’s twelve points on appeal, with limited exceptions, do not segregate her arguments and analysis between AAMS and PAVL; the points simply group both defendants together. Liberally construing Appellant’s points, we mirror Appellant’s presentation of her points.
4 AAMS entrusted its vehicle to Ramirez and no evidence exists that AAMS knew
Ramirez was an unlicensed, reckless driver; that no evidence exists that AAMS
acted with the requisite mental state for gross negligence; and that no evidence
exists that the doctrines of respondeat superior, actual agency or apparent
agency, vice-principal, or statutory employee apply. AAMS contends that
Rocky was an independent contractor and that no evidence to the contrary
exists.
PAVL filed a no-evidence and a traditional motion for summary judgment.
In its no-evidence motion, PAVL claimed that no evidence exists of the
following elements of Appellant’s claim for gross negligence: that PAVL was
the common law or statutory employer of Rocky; that PAVL acted with gross
negligence; and that any gross negligence by PAVL caused the accident. In its
traditional motion for summary judgment, PAVL likewise claimed that the
summary judgment evidence conclusively negates that PAVL was the common
law or statutory employer of Rocky, that PAVL acted with gross negligence,
and that any gross negligence by PAVL caused the accident.
IV. S UMMARY J UDGEMENT S TANDARDS OF R EVIEW
A. No-Evidence Motion
After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
5 ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The motion must
specifically state the elements for which there is no evidence. Id.; Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court
must grant the motion unless the nonmovant produces summary judgment
evidence that raises a genuine issue of material fact. See Tex. R. Civ. P.
166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a
scintilla of probative evidence that raises a genuine issue of material fact, then
a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981
S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied). We review a
no-evidence summary judgment for evidence that would enable reasonable and
fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249
S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802,
822 (Tex. 2005)).
6 Less than a scintilla of evidence exists when the evidence is so weak that
it does nothing more than create a mere surmise or suspicion of a fact. Kindred
v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of
evidence exists when the evidence would enable reasonable and fair-minded
people to reach different conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 601 (Tex. 2004); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997). A genuine issue of material fact is raised by presenting
evidence on which a reasonable jury could return a verdict in the nonmovant’s
favor. Moore, 981 S.W.2d at 266; see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255–56, 106 S. Ct. 2505, 2513–14 (1986) (interpreting Fed.
R. Civ. P. 56).
B. Traditional Motion
A defendant who conclusively negates at least one essential element of
a cause of action is entitled to summary judgment on that claim. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004); see Tex. R. Civ. P. 166a(b), (c). When reviewing a summary judgment,
we take as true all evidence favorable to the nonmovant, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. IHS
Cedars Treatment Ctr., 143 S.W.3d at 798. Summary judgment is proper
7 when parties do not dispute the relevant facts. Havlen v. McDougall, 22
S.W.3d 343, 345 (Tex. 2000).
When a party moves for summary judgment under both rules 166a(c) and
166a(i), we will first review the trial court’s judgment under the standards of
rule 166a(i). Ford Motor Co., 135 S.W.3d at 600. If the appellant failed to
produce more than a scintilla of evidence under that burden, then there is no
need to analyze whether the appellee’s summary judgment proof satisfied the
less stringent rule 166a(c) burden. Id.
V. T HE F EDERAL M OTOR C ARRIER S AFETY R EGULATION (FMCSR) P OINTS
In portions of her first, second, third, fourth, fifth, ninth, and eleventh
points, Appellant raises various arguments asserting that the trial court erred
by granting summary judgment because the Federal Motor Carrier Safety
Regulations 5 (“FMCSR”) doctrines of statutory employee, nondelegable duty,
or vicarious liability apply. Appellees PAVL 6 and AAMS argue that the summary
judgment evidence conclusively established the inapplicablity of the FMCSR
5 … See, e.g., 49 C.F.R. §§ 376.11–.12, 390.3, 390.5, 392.1, 392.60 (2008). 6 … Appellant’s claim against PAVL is limited to a claim for PAVL’s alleged gross negligence because Appellant made an express, written election of remedies, choosing to pursue a Texas Worker’s Compensation Benefits claim as the remedy for any negligence of PAVL. Nonetheless, because Appellant’s allegations of gross negligence against PAVL are premised on these same FMCSR doctrines, PAVL (along with AAMS) challenges their applicability.
8 doctrines of statutory employee, nondelegable duty, and vicarious liability to the
present facts because Rocky was an independent contractor and was not
driving when the accident occurred and because Cisneros and Ramirez were not
employees of either PAVL or AAMS.
The FMCSR define “employee” and “employer.” The FMCSR define an
“employee” as
any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.
49 C.F.R. § 390.5. The statutory definition of an “employer” under the FMCSR
reads, “[A]ny person engaged in a business affecting interstate commerce who
owns or leases a commercial motor vehicle in connection with that business,
or assigns employees to operate it . . . .” Id. (emphasis added).
The summary judgment evidence conclusively establishes that Rocky was
an independent contractor7 and that he was not driving the commercial motor
7 … In his summary judgment affidavit, Jack Fuyat, Sr., Senior Vice President of Corporate Affairs for the Arpin Group, Inc., and formerly for Paul Arpin Van Lines, Inc., swears that neither AAMS nor PAVL ever had a contract of employment with Rocky or with Alejandro Ramirez or Alejandro Cisneros and that Rocky was an independent contractor. No controverting summary
9 vehicle at the time of the accident.8 Independent contractors are statutory
employees under the FMCSR definition set forth above only when they are “in
the course of operating a commercial motor vehicle.” 49 C.F.R. § 390.5;
Pouliot v. Paul Arpin Van Lines, 292 F. Supp. 2d 374, 379–80 (D. Conn. 2003)
(holding “the definition of ‘employee’ in section 390.5 would apply to an
independent contractor while the contractor is driving his commercial motor
vehicle on any public or private road or highway”). Because Rocky was not “in
the course of operating a commercial motor vehicle” when the accident
occurred, he does not meet the FMCSR definition of employee and as a matter
of law was not a statutory employee of either AAMS or PAVL. Accord Ill. Bulk
Carrier, Inc. v. Jackson, 908 N.E.2d 248, 259 (Ind. Ct. App. 2009) (holding
driver was not statutory employee under FMCSR); Clarendon Nat’l Ins. Co. v.
Johnson, 666 S.E.2d 567, 571 (Ga. Ct. App. 2008) (same).
And the summary judgment evidence likewise conclusively shows that
Cisneros and Ramirez do not meet the FMCSR definition of “employee” set
forth above. The summary judgment evidence establishes that Rocky, not
judgment evidence exists. 8 … As previously mentioned, first responders all testified that John Doe A was the driver and the summary judgment affidavits of persons acquainted with Rocky conclusively establish that the photographs of John Doe A are not photographs of Rocky.
10 AAMS or PAVL, hired Cisneros and Ramirez. Rocky does not meet the FMCSR
definition of “employer” because he is not “a person who owns or leases a
commercial motor vehicle.” AAMS owned the commercial motor vehicle and
PAVL leased it from AAMS. Because Rocky does not meet the definition of an
“employer,” Cisneros and Ramirez cannot qualify as “employees” because they
were not “employed by an employer.” Thus, under the facts of this case, the
FMCSR statutory employee doctrine of vicarious liability is inapplicable to both
Rocky and to Cisneros and Ramirez. 9
Additionally, PAVL points out that the FMCSR do not apply here because
Appellant is not a “member of the public” whom the regulations were designed
to protect. The vicarious liability fiction of the statutory employee doctrine
applies only to the extent necessary to insure the carrier’s responsibility for the
public’s safety. See White v. Excalibur Ins. Co., 599 F.2d 50, 53 (5th Cir.),
cert. denied, 444 U.S. 965 (1979), superseded on other grounds by regulation
as stated in Simpson v. Empire Truck Lines, Inc., 571 F.3d 475, 475 (5th Cir.
9 … In her ninth point, Appellant argues that a fact issue was presented on her claims of participatory/vicarious liability for respondeat superior, actual and apparent agency, vice principal, and statutory employee. Because the summary judgment evidence conclusively establishes the lack of an employer- employee relationship or of any type of relationship at all between the “lumpers” and either AAMS or PAVL, no genuine issue of material fact exists concerning any of these theories of vicarious liability.
11 2009); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 39, 43 (Tex. App.—Fort
Worth 2002, no pet.) (recognizing that FMCSR preempt state law in tort actions
in which a member of the public is injured); see also Sharpless v. Sim, 209
S.W.3d 825, 830 (Tex. App.—Dallas 2006, pet. denied) (“Regardless of the
type of relationship between the carrier and the driver, however, the carrier is
not excused from the regulations that treat the driver as a statutory employee
for purposes of liability to the general public”) (emphasis added); Tamez v. Sw.
Motor Transp., Inc., 155 S.W.3d 564, 573 (Tex. App.—San Antonio 2004, no
pet.) (recognizing policy underlying FMCSR does not apply as to co-employees
of motor carriers injured by their fellow employees’ negligence since they could
recover from their employer in workers’ compensation). Because Appellant is
not a “member of the general public,” the statutory employee fiction does not
apply. See, e.g., White, 599 F.2d at 53.
To the extent Appellant’s first, second, third, fourth, fifth, ninth, and
eleventh points claim that the trial court erred by granting summary judgment
because the FMCSR doctrines of statutory employee, nondelegable duty, or
vicarious liability apply to the present facts, we overrule those points.
VI. N EGLIGENCE, N EGLIGENCE P ER S E, G ROSS N EGLIGENCE, AND R ES IPSA L OQUITUR
Appellant claims in her fifth and seventh points that AAMS and PAVL
were negligent and negligent per se by allegedly failing to provide safety
12 training to Rocky and by failing to ensure Rocky’s compliance with various
FMCSR. Likewise, in portions of her first, second, third, fourth, fifth, ninth,
tenth, and eleventh points, Appellant argues that AAMS and PAVL possessed
nondelegable duties under essentially the same FMCSR as follows: 49 C.F.R.
§ 375.207 (2008) (items that must be in advertisements); 49 C.F.R. § 383.35
(2008) (notification of previous employment); 49 C.F.R. § 392.1 (driving of
commercial motor vehicles); 49 C.F.R. § 392.3 (2008) (ill or fatigued driver);
49 C.F.R. § 392.6 (schedules to conform with speed limits); 49 C.F.R. §
392.60 (unauthorized persons not to be transported); 49 C.F.R. § 390.13
(2008) (aiding or abetting violations); 49 C.F.R. § 390.3(e) (general
applicability); 49 C.F.R. § 390.35 (2008) (certificates, reports, and records;
falsification, reproduction, or alteration); 40 C.F.R. § 5.105 (2008) (definitions);
49 C.F.R. § 391.1 (2008) (scope of the rules in this part, additional
qualifications; duties of carrier drivers); 49 C.F.R. § 391.15 (2008)
(disqualification of drivers); and 49 C.F.R. § 391.23 (2008) (maximum driving
time for property-carrying vehicles). In Appellant’s sixth point, she claims in
three sentences that her pleading of the doctrine of res ipsa loquitur is sufficient
to defeat AAMS’s and PAVL’s no-evidence summary judgment motions. In her
twelfth point, she contends that a motor carrier can be liable for the gross
negligence of its agents or vice principals.
13 A negligence cause of action requires proof of (1) a legal duty owed by
one person to another, (2) a breach of that duty, and (3) damages proximately
caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.
Negligence per se is a concept adopted by the civil courts in which a duty
is based on a standard of conduct created by a statute rather than on the
reasonably prudent person test used in pure negligence claims. Smith v.
Merritt, 940 S.W.2d 602, 607 (Tex. 1997); Omega Contracting, Inc. v. Torres,
191 S.W.3d 828, 839 (Tex. App.—Fort Worth 2006, no pet.) (op. on reh’g.)
(discussing negligence per se in the context of nondelegable duties under the
FMCSR). In a negligence per se case, the factfinder is not asked to decide
whether the defendant acted as a reasonably prudent person would have acted
under the same or similar circumstances; instead, the statute itself states what
a reasonably prudent person would have done. Omega Contracting, 191
S.W.3d at 839. If an excuse is not raised, the only inquiry for the factfinder is
whether the defendant violated the statute and, if so, whether the violation was
a proximate cause of the injury. Id.
To prove that a defendant’s negligence constituted gross negligence, a
plaintiff must prove two elements: (1) that viewed objectively from the actor’s
standpoint, the act or omission involved an extreme degree of risk, considering
14 the probability and magnitude of the potential harm to others, and (2) that the
actor must have had actual, subjective awareness of the risk involved, but
nevertheless proceeded in conscious indifference to the rights, safety, or
welfare of others. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.
1998). Evidence of simple negligence is not enough to prove either the
objective or subjective elements of gross negligence. Id.
Here, AAMS and PAVL both filed no-evidence motions for summary
judgment on the issue of causation. Because causation is an element of
Appellant’s negligence, negligence per se, and gross negligence claims, even
if summary judgment evidence existed that AAMS and PAVL were negligent,
violated one of the statutory duties alleged by Appellant, or were grossly
negligent, in light of AAMS’s and PAVL’s no-evidence motions on the issue of
causation, Appellant had the burden to come forward with more than a scintilla
of evidence that AAMS’s negligence was a proximate cause of the accident,
that AAMS’s and PAVL’s alleged statutory FMCSR violations were a proximate
cause of the accident, and that PAVL’s alleged gross negligence was a
proximate cause of the accident. See, e.g., D. Houston, Inc., 92 S.W.3d at
454; Mobil Oil Corp., 968 S.W.2d at 921; Omega Contracting, 191 S.W.3d at
839. Appellant points us to no such summary judgment evidence; AAMS’s and
PAVL’s summary judgment evidence establishes that Rocky had no trips
15 scheduled after this one, Rocky was told he did not have to return to Dallas on
the evening of the accident, and Rocky had not exceeded the number of hours
he was permitted to drive. Because no summary judgment evidence exists that
any violation of any FMCSR by AAMS or PAVL proximately caused the
accident, we overrule Appellant’s seventh, tenth, and twelfth points and the
balance of her first, second, third, fourth, 10 fifth, ninth and eleventh points.
Res ipsa loquitur is a rule of evidence whereby negligence of the alleged
wrongdoer may be inferred from the mere fact that the accident happened,
provided (1) the character of the accident and the circumstances attending it
lead reasonably to the belief that, in the absence of negligence, it would not
have occurred, and (2) the thing that caused the injury is shown to have been
under the management and control of the alleged wrongdoer. Haddock v.
Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990). The effect of successfully
invoking the res ipsa loquitur doctrine is that the plaintiff can survive
no-evidence procedural challenges. See Mobil Chem. Co. v. Bell, 517 S.W.2d
10 … Within her fourth point, Appellant claims AAMS negligently entrusted the truck to Rocky. Because the summary judgment evidence conclusively established that Rocky was not driving at the time of the accident, any negligent entrustment to Rocky, as a matter of law, was not a proximate cause of the accident, and the trial court did not err by granting AAMS’s and PAVL’s no-evidence-of-causation summary judgment motions on Appellant’s theory that AAMS or PAVL negligently entrusted the truck to Rocky.
16 245, 251 (Tex. 1975) (explaining that no presumption of defendant’s
negligence arises, instead the jury is merely free to infer negligence; the plaintiff
continues to have burden of persuading jury by preponderance of evidence that
defendant was negligent).
Here, Appellant has not successfully invoked the doctrine of res ipsa
loquitur to avoid AAMS’s and PAVL’s no-evidence summary judgment
challenges. Appellant did not establish that the thing that caused the
injury—here, the driver of the commercial motor vehicle, who was not
Rocky—was under the management and control of the alleged
wrongdoer—AAMS or PAVL. That is, because neither Cisneros nor Ramirez
were actual or statutory employees of AAMS or PAVL, they were not under
AAMS’s or PAVL’s control.
We overrule Appellant’s sixth point.
VII. N EGLIGENT E NTRUSTMENT
In her eighth point, Appellant argues that the trial court erred by granting
summary judgment on her negligent entrustment claim because a fact issue
exists as to whether “AAMS trusted its vehicle to Alejandro Ramirez and/or
Alejandro Cisneros” and “knew or should have known Alejandro Ramirez and/or
Alejandro Cisnersos were unlicensed, incompetent, or reckless.”
17 To establish negligent entrustment of an automobile, a plaintiff must
prove the following elements: (1) the owner entrusted the automobile, (2) to
a person who was an incompetent, or reckless driver, (3) who the owner knew
or should have known was incompetent or reckless, (4) the driver was
negligent, and (5) the driver’s negligence proximately caused the accident and
the plaintiff’s injuries. De Blanc v. Jensen, 59 S.W.3d 373, 375–76 (Tex.
App.—Houston [1st Dist.] 2001, no pet.) (citing Schneider v. Esperanza
Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)). AAMS and PAVL argue
that the summary judgment evidence conclusively negates the first and second
elements of negligent entrustment. They claim that they did not entrust the
commercial motor vehicle to anyone except Rocky and that Rocky was not
driving at the time of the accident. Because the summary judgment evidence
does conclusively establish these two facts, and because no evidence exists
that AAMS or PAVL entrusted the commercial motor vehicle to Ramirez or
Cisneros or that AAMS or PAVL knew or should have known that Ramirez or
Cisneros were reckless or incompetent drivers, the trial court did not err by
granting summary judgment on Appellant’s negligent entrustment claim. See,
e.g., Sheffield v. Drake, 255 S.W.3d 779, 786 (Tex. App.—Eastland 2008, pet.
denied) (upholding no-evidence summary judgment granted on negligent
18 entrustment claim because no evidence existed defendant entrusted vehicle to
driver).
We overrule Appellant’s eighth point.
VIII. C ONCLUSION
Having overruled Appellant’s twelve points on appeal, we affirm the trial
court’s judgment.
SUE WALKER JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
DELIVERED: August 13, 2009