1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

ARMANDO MACHADO, BELINDA 

MARCHADO,

 Plaintiffs,

vs.

HEATH DYER, U.S. XPRESS, INC.,

 Defendants.

§

§

§

§

§

§

§

§

§

§

SA-20-CV-00193-FB

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Fred Biery: 

This Report and Recommendation concerns Defendant Heath Dyer and Defendant U.S. 

Xpress Inc.’s Motion for Partial Summary Judgment [#37]. 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, and the undersigned has authority to enter a recommendation as to 

Defendants’ Motion for Partial Summary Judgment pursuant to 28 U.S.C. § 636(b)(1)(B). 

In reviewing Defendants’ motion, the undersigned has also considered Plaintiffs’

Response [#38] and Defendants’ Reply [#39]. Having considered these written filings, the 

record in this case, and the governing law, the undersigned recommends that Defendants’

Motion for Partial Summary Judgment on Plaintiffs’ direct claims against Xpress, gross 

negligence claims against both Xpress and Dyer, and negligence per se claim against Dyer [#37] 

be GRANTED. Plaintiffs’ claims against Dyer for ordinary negligence and against Xpress for 

vicarious liability should proceed to trial.

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 1 of 15
2

I. Background

The instant case arises out of a motor-vehicle accident occurring on January 1, 2019, on 

Loop 410 in San Antonio, Texas. (Am. Compl. [#33] ¶ 7.) The case was removed to this Court 

on February 18, 2020. (Notice of Removal [#1].) Plaintiffs Armando and Belinda Machado 

allege various theories of negligence related to the accident. According to the Amended 

Complaint before the Court, Plaintiffs’ vehicle was struck by an 18-wheeler operated by 

Defendant Heath Dyer, and Plaintiffs sustained serious injuries and damages from the collision. 

Plaintiffs also bring claims against Dyer’s employer, Defendant U.S. Xpress, Inc (“Xpress”). 

Plaintiff alleges that Dyer, while driving in the course of scope of his employment with Xpress,

“failed to control his speed, failed to drive to weather conditions, and failed to take proper 

evasive action causing him to violently collide[]” into Plaintiffs’ car. (Am. Compl. [#33] ¶ 7.) 

Defendants now move for partial summary judgment on Plaintiffs’ direct claims against Xpress, 

their gross negligence claims against Defendants, and their negligence per se claim against Dyer. 

(Def. Mo. for Part. Sum. J. [#37] ¶ 3.)

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). 

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 2 of 15
3

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 it 

believes 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 Plaintiffs, the summary 

judgment record establishes the following:

It is undisputed that on January 1, 2019, Plaintiff driver Armando Machado and Plaintiff 

passenger Belinda Machado were in a 2009 Pontiac G3 and stopped on Loop 410 in a travel lane. 

(Am. Compl. [#33] ¶ 7; Def. Mo. for Part. Sum. J. [#27] ¶ 1; Crash Report [#38-3], at 2–4.) 

Dyer was driving a 2015 Freightliner tractor trailer for Xpress on Loop 410 and collided with the 

Machado vehicle. (Id.)

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 3 of 15
4

That same day, San Antonio Police Officer Douglas Meynig investigated the collision. 

(Crash Report [#38-3], at 3.) In the report, Officer Meynig stated that the weather condition was 

“extreme fog” and that it was “difficult to see the road due to the fog,” which “left the surface 

wet.” (Id.) 

On September 22, 2020, Dyer testified in a deposition. (Dyer Depo. [#38-1].) Dyer 

testified that he received his commercial driving license in April 2016. (Id. at 6.) When he 

joined Xpress, Dyer completed a five-day training on company policy and safety and completed

a road test, drug test, and physical. (Id. at 9.) 

Regarding the collision at issue, Dyer testified that he remembered “hitting some fog” 

that “wasn’t that bad at first.” (Id. at 32.) “Then,” Dyer said, “out of the blue, [the fog] started 

getting really heavy,” and Dyer “hit the brake and instantly [the fog] got really heavy.” (Id. at 

32–33.) Right before the collision, Dyer said he “was on the engine brake and standing on [the]

brake pedal.” (Id.)

The summary judgment record also contains a ten-second clip from Dyer’s dashcam 

footage recorded right before and during the collision. (CD Exhibit D [#38-4].) For the first 

three seconds, Dyer traveled at 70 miles per hour on an empty, foggy highway with dark skies 

above. At second four, the fog got heavier, and Dyer hit his brakes. At second seven, taillights 

come into view on the highway as Dyer’s vehicle slowed to 52 miles per hour. At second eight, 

the Machado vehicle came into view right in front of Dyer’s vehicle, and Dyer hit the Machado 

vehicle at around 38 miles per hour. 

IV. Analysis

Plaintiffs assert that Dyer was negligent, negligent per se, and grossly negligent in the 

operation of his vehicle on January 1, 2019. (Am. Compl. ¶¶ 8, 9, 11.) Plaintiffs also allege that 

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 4 of 15
5

Xpress is vicariously liable under the doctrine of respondeat superior for Dyer’s negligence and 

allege direct negligence claims against Xpress for negligent hiring; negligent training, 

supervision, and retention; negligent entrustment, maintenance, and inspection; negligent 

implementation of a safety program and monitoring; and gross negligence. (Id. ¶¶ 16, 19.) 

Defendants do not move for summary judgment on Plaintiffs’ ordinary negligence claim against 

Dyer or the vicarious liability claim against Xpress. However, Defendants contend that the 

direct negligence claims against Xpress, the gross negligence claims against both Xpress and 

Dyer, and the negligence per se claim against Dyer fail as a matter of law. The undersigned 

agrees.

1) Negligent Training by Xpress

The Court should award summary judgment to Xpress on Plaintiffs’ negligent training 

claim. The parties agree that Plaintiffs’ negligence claims in this diversity case are governed by 

Texas law. The Texas Supreme Court has “‘not ruled definitely on the existence, elements, and 

scope of such torts and related torts such a negligent training or hiring.’” See JBS Carriers v. 

Washington, 564 S.W.3d 830, 842 (Tex. 2018) (quoting Waffle House, Inc. v. Williams, 313 

S.W.3d 797, 804 n.7 (Tex. 2010)). The Court has, however, considered evidentiary challenges to 

jury findings regarding such claims and has required a showing of evidence that the employer’s 

negligence caused the injuries that plaintiffs allege. Id. To establish a claim for negligent 

training, a plaintiff must prove that a reasonably prudent employer would have provided training 

beyond that which was given and that failure to do so caused the plaintiff’s injuries. Dangerfield 

v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.—Fort Worth 2008, no pet.). 

Employers have no duty to train their employees regarding commonly known dangers of 

driving. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 412–13 (Tex. 2009)

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 5 of 15
6

(holding employers have no duty to train about driving while fatigued); Nat’l Convenience 

Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.)

(holding that employers have no duty to instruct an employee, who is an experienced driver,

“with regard to dangers that are ordinarily incident to driving a vehicle and require no special 

skills or knowledge other than that expected of all licensed drivers.”). 

Here, the dangers of driving in heavy fog are known to all licensed drivers, and 

navigation in such conditions does not require special skills. Plaintiffs argue that because the 

Federal Motor Carrier Safety Regulations (“FMCSR”) and the Texas Commercial Motor Vehicle 

Drivers Handbook (“TCMVDH”) cover how to drive in heavy fog, and because Dyer could not 

specifically describe his training on driving in fog, Xpress negligently trained him. That the 

dangers of driving in fog are mentioned in the federal regulations and Texas commercial driver’s 

manual does not mean that Xpress had a duty to train its drivers on the subject. In fact, driving

while fatigued is also included as a danger in the FMCSR and TCMVDH,

1

and in Nabors 

Drilling, the Texas Supreme Court held that employers do not have a duty to train their drivers 

about this commonly known danger either. 

Further, even if driving in foggy conditions were not a commonly known danger, and 

even if Xpress had a duty to train its drivers on driving in foggy conditions, to establish a 

negligent training claim, Plaintiffs must present evidence that Xpress’s failure to train Dyer was 

the proximate cause for their injuries. In JBS, the plaintiffs sued a trucking company directly for 

negligent training after one of the company’s drivers ran over their mother as she walked across 

the street in front of the truck. See 564 S.W.3d at 833. To support this claim, the plaintiffs put 

forth evidence that the company’s training manual indicated three blind spots but did not 

1

See Fed. Motor Carrier Safety Regs. § 6.3.1; Tex. Com. Motor Vehicle Drivers Handbook § 

2.11.

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 6 of 15
7

mention a blind spot in front of the truck, as well as the driver’s testimony that he could not 

remember specific training on the blind spot in front of the truck. Id. at 842. The plaintiffs 

asserted that if the driver would have been trained on the front blind spot, he would have known 

that just because he could not see anything in front of him did not mean that there was nothing 

there. Id. The court of appeals upheld the jury’s finding of negligent training crediting 

plaintiffs’ evidence as legally sufficient, but the Texas Supreme Court reversed. Id. at 843. The 

Court found that the record was devoid of any evidence that showed that if the driver had 

received training about the front blind spot, the accident would not have happened. Id. at 843. 

Thus, there was no evidence that the company’s failure to train the driver was the proximate 

cause of the accident. Id. at 843. 

Just as in JBS, the record in this case does not contain evidence that shows that if Xpress 

had trained Dyer on how to drive in fog, he would not have collided with Plaintiffs’ vehicle. The 

lack of evidence on this causal connection is fatal to Plaintiffs’ negligent-training claim. 

In sum, the Court should award summary judgment to Xpress on Plaintiffs’ negligenttraining claim because employers do not have a duty to train drivers on common dangers like 

driving in fog, and Plaintiffs failed to present any evidence that Xpress’s failure to train Dyer 

was the proximate cause of their injuries. 

2) Negligent Entrustment by Xpress

The Court should award summary judgment to Xpress on Plaintiffs’ negligent 

entrustment claim. The elements of negligent entrustment are: (1) the entrustment of a vehicle 

by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) whom the owner knew or 

should have known was unlicensed, incompetent, or reckless; and (4) the driver’s negligence on 

the occasion in question; (5) proximately caused the accident. See Goodyear Tire and Rubber 

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 7 of 15
8

Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007). For entrustment to be the proximate cause of 

an injury, the defendant entruster must have been reasonably able to anticipate that an injury 

would result as a natural and probable consequence of the entrustment. See Schneider v. 

Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987). For example, Texas courts have 

upheld jury verdicts for negligent entrustment where employers hired drivers without inquiring 

or checking into their driving records. See, e.g., Russell v. Ramirez, 949 S.W.2d 480, 490 (Tex. 

App.—Houston [14th Dist.] 1997, no writ.); Southwestern Bell Tel. Co. v. Davis, 582 S.W.2d 

191, 195 (Tex. App.—Waco 1979, no writ.); Montgomery Ward and Co. v. Marvin Riggs Co., 

584 S.W.2d 863, 866–67 (Tex. App.—Austin 1979, writ ref’d n.r.e.). 

Here, Plaintiffs support their negligent entrustment claim with only circular reasoning. 

They argue that based on Dyer’s driving on the day of the accident, he was a reckless and 

incompetent driver, and therefore, Xpress entrusted the vehicle to an incompetent and reckless 

driver. Plaintiffs rely solely on evidence of Dyer’s driving on date of the accident at issue and

present no evidence of Dyer’s alleged recklessness or incompetence prior to the date of the 

accident. Thus, Plaintiffs have failed to present evidence that Xpress should have been 

reasonably able to anticipate that an injury could occur by entrusting a vehicle to Dyer. The 

Court should award summary judgment to Xpress on this claim as well. 

3) Gross Negligence of Dyer

The Court should also grant Dyer summary judgment on Plaintiffs’ claim of gross 

negligence. Under Texas law, a plaintiff is entitled to punitive damages upon a showing of gross 

negligence. Tex. Civ. Prac. & Rem. Code § 41.003. To prevail on a claim of gross negligence, 

the plaintiff must prove both an objective and subjective component of her claim: (1) that viewed 

objectively from the standpoint of the defendant at the time of the events underlying this suit, the 

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 8 of 15
9

act or omission of the defendant involved an extreme degree of risk, considering the probability 

and magnitude of the potential harm to others; and (2) that the 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. Emmons, 50 

S.W.3d 103, 128 (Tex. App.—Beaumont 2001, no pet.). 

As to the subjective component, an act or omission that is merely thoughtless, careless, or 

not inordinately risky cannot be grossly negligent. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 

(Tex. 1994), superseded by statute on other grounds as stated in U-Haul Int’l, 380 S.W.3d 118. 

Only if the defendant’s act or omission is unjustifiable and likely to cause serious harm can it be 

grossly negligent, i.e., the situation must be “highly dangerous.” Id.; Wal–Mart Stores, Inc. v. 

Alexander, 868 S.W.2d 322, 326 (Tex. 1993). Thus, a party cannot be liable for gross 

negligence when it actually and subjectively believes that circumstances pose no risk to the 

injured party, even if he or she is wrong. U–Haul Int’l, 380 S.W.3d at 141 (citation omitted). A 

defendant’s subjective mental state can be proven by direct or circumstantial evidence. Moriel, 

879 S.W.2d at 23. There is a high burden to find gross negligence, as “punitive damages are 

proper only in the most exceptional cases.” Id. at 18. 

What separates ordinary negligence from gross negligence is the defendant’s state of 

mind; the plaintiff must show that the defendant knew about the peril, but his acts or omissions 

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 9 of 15
10

demonstrate that he did not care. See Aguirre v. Vasquez, 225 S.W.3d 744, 755 (Tex. App.—

Houston [14th Dist.] 2007, no pet.) (citing Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 

246–47 (Tex. 1999)). Plaintiffs contend that Dyer was grossly negligent in failing to adhere to 

the FMCSR and TCMVDH provisions regarding driving in fog and that he knew of the extreme 

risk of driving at his speed in heavy fog but continued to do so anyway. Even if the undersigned 

found that Dyer’s failure to adequately slow down in heavy fog objectively posed an “extreme 

risk” to others, Plaintiffs have failed to produce any evidence that Dyer was subjectively aware 

of or consciously indifferent to the risk involved. 

In Harbin, the defendant was traveling at 80 m.p.h. at night on a narrow street in a 

residential area of Dallas. Harbin v. Seale, 461 S.W.2d 591, 594 (Tex. 1970). The defendant 

knew he was approaching a curve in the road because he had traveled it many times. Id. He also 

knew that there were homes in close proximity to the street. Id. The defendant unsurprisingly 

hit the curb and traveled 650 feet after impact. Id. The Court upheld the jury’s finding that the

defendant was grossly negligent, finding the controlling evidence to be the defendant’s speed, 

the time of day of the accident, and that the defendant admittedly realized the danger as he 

approached the curve on a narrow street in a residential area and yet continued to drive 

recklessly. Id. 

Whereas the evidence showed the defendant in Harbin knew that his driving was 

dangerous in the moment, Plaintiffs have not submitted similar evidence with regard to Dyer’s 

knowledge. Plaintiffs point to Dyer’s deposition testimony as proof that he knew the danger and 

did not care, but the testimony reveals that Dyer thought the fog “wasn’t that bad at first” but that 

“out of the blue” the fog got heavy and he “hit the brake and instantly [the fog] got really heavy.” 

(Dyer Depo. [#38-1], at 32–33.) Dyer’s testimony is not proof that he knew of the danger but 

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 10 of 15
11

did not care. As the record does not contain evidence that could support a finding that Dyer was 

grossly negligent, the Court should award summary judgment on this claim. 

4) Gross Negligence of Xpress

The Court should award summary judgment to Xpress on Plaintiffs’ gross negligence 

claim. A corporation may be liable in punitive damages for gross negligence only if the 

corporation itself: (1) commits gross negligence, (2) authorized or ratified an agent’s gross 

negligence, (3) was grossly negligent in hiring an unfit agent, or (4) committed gross negligence 

through the actions or inactions of a vice principal.2 Mobil Oil v. Ellender, 968 S.W.2d 917, 

921–22 (Tex. 1998). Plaintiffs contend that Xpress was grossly negligent because it was aware 

that extreme weather conditions would be encountered by the drivers at some point, yet it failed 

to train its drivers on driving in these conditions. Plaintiffs’ theory of corporate liability is 

unclear, but Plaintiffs’ claim best fits into the first category: that Xpress itself committed gross 

negligence. Therefore, the same standard for Plaintiffs’ claim of gross negligence against Dyer 

applies here: Plaintiffs must show that Xpress’s actions objectively posed an “extreme risk” to 

the welfare of others and that Xpress subjectively knew of the risk but did not care. See U–Haul 

Int’l, 380 S.W.3d at 137; Aguirre, 225 S.W.3d at 745.

Plaintiffs’ gross negligence claim against Xpress is merely a repackaged version of their 

negligent training claim. Again, Xpress has no duty to train its employees about commonly 

known dangers such as fog. In the absence of such a duty, it cannot be true that Xpress’s alleged 

failure to train Dyer about driving in fog posed an “extreme risk” to the welfare of others. 

2 A “vice principal” encompasses corporate officers; those who have authority to employ, direct, 

and discharge servants of the master; those engaged in the performance of nondelegable or 

absolute duties of the master; and those to whom the master has confided the management of the 

whole or a department or a division of the business. Mobil Oil v. Ellender, 968 S.W.2d 917, 922 

(Tex. 1998). No one argues Dyer was a vice principal of Xpress.

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 11 of 15
12

Further, Plaintiffs have presented no evidence that Xpress was aware, but did not care, that it had

not trained Dyer about driving in fog. Therefore, as the record contains no evidence that Xpress 

was grossly negligent, the Court should award summary judgment to Xpress on this claim. 

5) Plaintiffs’ Negligent Hiring Claim Against Xpress; Negligent Supervision, Inspection 

and Maintenance Claim Against Xpress; and Negligence Per Se Claim Against Dyer

Finally, the Court should grant Xpress summary judgment on Plaintiffs’ negligent hiring 

claim as well as its negligent supervision, inspection and maintenance claims, and grant Dyer 

summary judgment on Plaintiffs’ negligence per se claim. Plaintiffs’ summary judgment 

response does not address any of these claims. 

Pursuant to Western District of Texas Local Rule CV-7-1(e)(2), when a party does not 

respond to a dispositive motion within fourteen days, the court may grant the motion as 

unopposed. Because Plaintiffs have failed to respond with regard to these claims, the Court 

construes Defendants’ motion for summary judgment unopposed on these points. Further, the 

record shows that the Defendants are entitled to judgment as a matter of law on these claims. 

An employer is liable for negligent hiring if it hires an incompetent or unfit employee 

whom it knows was incompetent or unfit—or by the exercise of reasonable care should have 

known was incompetent or unfit—thereby creating an unreasonable risk to others. Morris v. 

JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App.—Fort Worth 2002, no pet.). Even, for 

example, where an employer fails to conduct a background check on an employee before hiring, 

the employer is only liable for negligent hiring if there is evidence that something would have 

been found in the background check that would cause a reasonable employer not to hire the 

employee. See, e.g., Fifth Club Inc., v. Ramierez, 196 S.W.3d 788, 796 (Tex. 2006). Plaintiffs 

have presented no evidence that Xpress failed to use ordinary care in determining whether Dyer 

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 12 of 15
13

was competent or qualified prior to hiring him. Thus, Xpress is entitled to summary judgment on 

this claim. 

Plaintiffs have not presented any evidence that Xpress’s negligent supervision, 

inspection, and maintenance caused Plaintiffs’ injuries. Causation is an element of each of these 

claims. See Knight v. City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex. App.—Houston [14th 

Dist.] 2005, no pet.) (negligent supervision); Sanders v. Naes Cent., 498 S.W.3d 256, 260 (Tex. 

App.—Houston [1st Dist.] 2016, no pet.) (negligent maintenance and inspection). Xpress is 

therefore entitled to summary judgment on these claims as well.

Lastly, Plaintiffs’ claim that Dyer committed negligence per se in light of Texas 

Transportation Code § 545.401 fails as a matter of law. In order to prevail on a theory of 

negligence per se, a plaintiff must first establish that the defendant violated a statue or ordinance. 

Stierwalt v. FFE Transp. Servs., Inc., 499 S.W.3d 181, 195 (Tex. App.—El Paso 2016, no pet.). 

Here, Plaintiffs assert that Dyer committed negligence per se because they allege that he violated 

section 545.401 of the Texas Transportation Code, which states: “a person commits an offense if 

the person drives a vehicle in willful or wanton disregard for the safety of persons or property.” 

Plaintiffs have presented no evidence that Dyer drove with “willful or wanton disregard for the 

safety of others” and therefore have presented no evidence that Dyer violated the Texas 

Transportation Code and committed negligence per se. The Court should award summary 

judgment to Dyer on this claim. 

V. Conclusion and Recommendation

Having considered Defendants’ motion, the response and reply thereto, the evidence 

before the Court, and governing law, the undersigned hereby recommends that Defendant Heath 

Dyer and Defendant U.S. Xpress Inc.’s Motion for Partial Summary Judgment [#37] be 

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 13 of 15
14

GRANTED. The Court should award Xpress summary judgment on Plaintiffs’ direct 

negligence and gross negligence claims and award Dyer summary judgment on Plaintiffs’ 

negligence per se and gross negligence claims. Only Plaintiffs’ ordinary negligence claims 

against Dyer and vicarious liability claims against Xpress should proceed to trial.

VI. Instructions for Service and Notice of Right to Object/Appeal.

The United States District Clerk shall serve a copy of this report and recommendation on 

all parties by either (1) electronic transmittal to all parties represented by attorneys registered as 

a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified 

mail, return receipt requested. Written objections to this report and recommendation must be 

filed within fourteen (14) days after being served with a copy of same, unless this time period is 

modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file 

the objections with the clerk of the court and serve the objections on all other parties. A party 

filing objections must specifically identify those findings, conclusions or recommendations to 

which objections are being made and the basis for such objections; the district court need not 

consider frivolous, conclusive or general objections. A party’s failure to file written objections 

to the proposed findings, conclusions and recommendations contained in this report shall bar the 

party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 

(1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to 

file timely written objections to the proposed findings, conclusions and recommendations 

contained in this report and recommendation shall bar the aggrieved party, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal 

conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1428–29 (5th Cir. 1996) (en banc).

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 14 of 15
15

SIGNED this 7th day of May, 2021.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

Case 5:20-cv-00193-FB-ESC Document 40 Filed 05/07/21 Page 15 of 15