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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DAVID FLAMBURES,

Plaintiff

v.

KEVIN DANIEL MCCLAIN and 

TRANSPORT CORPORATION OF 

AMERICA, INC.,

Defendants

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Case No. 1:20-cv-00304-DAE

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE DAVID A. EZRA

UNITED STATES DISTRICT JUDGE

Before the Court are Defendants’ Motion for Summary Judgment on Plaintiff’s Claim of 

Negligence, filed February 25, 2021 (Dkt. 26), and the associated response and reply briefs.1 The 

District Court referred the Motion to the undersigned Magistrate Judge for Report and 

Recommendation, pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and 

Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western

District of Texas. Dkt. 31.

I. Background

On January 4, 2019, Plaintiff David Flambures was driving on Interstate Highway 35 in Hays 

County, Texas, when he looked down at his cell phone and then rear-ended a tractor-trailer owned 

by Transport Corporation of America, Inc. (“Transport America”) and driven by Kevin McClain

1 Plaintiff filed his response after the deadline. Local Rule CV-7(e)(2). Because the Motion is dispositive, 

the Court has considered Plaintiff’s late-filed response and evidence. See Johnson v. Pettiford, 442 F.3d 

917, 918-19 (5th Cir. 2006) (stating that failure to timely respond to dispositive motion should not result in 

automatic grant absent clear record of delay or contumacious conduct).

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(collectively, “Defendants”). Dkt. 1-3 ¶¶ 6, 9; Dkt. 28 at 2. Plaintiff alleges that McClain made an 

unsafe lane change that caused the collision. Id. ¶ 9.

Plaintiff filed suit in state court, asserting a claim for negligence against McClain and 

respondeat superior liability against Transport America. Id. ¶¶ 10-14. Flambures v. McClain,

No. 20-0212 (207th Dist. Ct., Hays County, Tex. Jan. 28, 2020). On March 20, 2020, Defendants 

removed the case to this Court based on diversity jurisdiction under 28 U.S.C. § 1332 and filed an 

Answer denying all liability and claiming that the accident was the result of Plaintiff’s negligence.

Dkts. 1, 1-3, 5. Defendants now move for summary judgment under Federal Rule of Civil 

Procedure 56, arguing that they are entitled to judgment on Plaintiff’s negligence claim. 

II. Legal Standard

Summary judgment shall be rendered when the pleadings, the discovery and disclosure 

materials, and any affidavits on file show that there is no genuine dispute as to any material fact 

and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex 

Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 

2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable 

jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to 

view all inferences drawn from the factual record in the light most favorable to the nonmoving 

party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d 

at 508. A court “may not make credibility determinations or weigh the evidence” in ruling on a 

motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 

(2000); see also Anderson, 477 U.S. at 254-55.

Once the moving party has made 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 

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summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586.

Mere conclusory allegations are not competent summary judgment evidence and thus are 

insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 

476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and 

unsupported speculation also are not competent summary judgment evidence. Id. The party 

opposing summary judgment is required to identify specific evidence in the record and to articulate 

the precise manner in which that evidence supports its claim. Adams v. Travelers Indem. Co. of 

Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficient 

to establish the existence of an element essential to its case and on which it will bear the burden of 

proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

“When opposing parties tell two different stories, one of which is blatantly contradicted by the 

record, so that no reasonable jury could believe it, a court should not adopt that version of the facts 

for purposes of ruling on a summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); see 

also Griggs v. Brewer, 841 F.3d 308, 316 (5th Cir. 2016) (affirming district court grant of summary 

judgment where record included video evidence showing that pertinent facts were undisputed); 

Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (stating that a court need not rely 

on plaintiff's description of the facts “where the record discredits that description but should 

instead consider ‘the facts in the light depicted by the videotape’” (quoting Scott, 550 U.S. at 381)).

III. Summary Judgment Record

Defendants submitted as summary judgment evidence transcripts of the depositions of Plaintiff 

(Exh. B, Dkt. 26-2) and independent witness David Jerez (Exh. A, Dkt. 26-1), as well as video 

footage from the dashboard camera on McClain’s vehicle (Exh. D, Dkt. 26-4). Plaintiff submitted 

the transcript of McClain’s deposition (Exh. A, Dkt. 28-1) and the Texas Peace Officer’s Crash 

Report, dated January 4, 2019 (Exh. B, Dkt. 28-2).

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IV. Analysis

The elements of a negligence cause of action under Texas law are “the existence of a legal 

duty, a breach of that duty, and damages proximately caused by the breach.” Gharda USA, Inc. v. 

Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015) (quoting IHS Cedars Treatment Ctr. of 

DeSoto, Tex. Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)). To show breach of duty, a plaintiff 

must present evidence that the defendant failed to do as an ordinarily prudent person would have 

done under the same or similar circumstances. Colvin v. Red Steel Co., 682 S.W.2d 243, 245 

(Tex. 1984) (citing Great Atl. & Pac. Tea Co. v. Evans, 175 S.W.2d 249, 251 (Tex. 1943)).

A. Negligence

Defendants contend that they are entitled to summary judgment because there is no evidence 

that McClain breached his duty of care. Plaintiff responds that summary judgment is precluded by 

factual disputes as to whether McClain breached his duty by (1) making an unsafe lane change,

and (2) driving below the posted speed limit without warning lights.

1. Lane Change

First, Plaintiff alleges that McClain breached his duty of care by making an unsafe lane change 

before the crash. Dkt. 1-3 ¶ 9; Dkt. 28 at 4. Plaintiff testified that the accident occurred as he 

“looked down for a split second.” Dkt. 26-2 at 12, Flambures Tr. at 35:21-36:2. Plaintiff further 

testified that he was in the right lane when he first saw the tractor-trailer driven by McClain in the 

left lane, two car lengths in front of him. Id. at 36:3-37:22.

They started to slow down. I didn’t pay any attention. I figured, 

you know, keep going. Next thing I know, I looked down for a 

split second. That was it. I felt a crunch. I heard something pop 

on my head, and that was the last thing I remember.

. . . 

Q. Okay. Did you ever see that tractor-trailer change lanes into 

the right lane?

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A. No.

Q. And is it your belief that that tractor-trailer changed lanes 

when you looked down for that split second?

A. Correct.

Dkt. 26-2 at 12-13, Flambures Tr. at 37:24-38:19. When asked what he was looking at just before 

the accident, Plaintiff testified: “I think it was my personal cell phone went off like a text, and I 

looked down because it buzzed and fell on the floor, if I remember correctly. I – I can't recall 

exactly what I was looking at.” Id. at 19, Flambures Tr. at 64:3-11.

The footage from McClain’s dashboard camera shows McClain driving in the right lane for a 

full eight seconds before the crash. Dkt. 26-4. Defendants also point to testimony from independent 

witness David Jerez that McClain was in the right lane for “a minute or two” before the collision 

and that he did not observe McClain change lanes before the accident. Dkt. 26-1 at 18-19, Jerez 

Tr. at 16:8-25, 17:1-4.

Plaintiff responds that his and Jerez’s testimony “present an actual factual dispute about how 

long Plaintiff looked down and how long Defendant McClain was in his lane.” Dkt. 28 at 4. In 

other words, Plaintiff suggests that summary judgment as to Defendants’ negligence is precluded 

by a factual dispute whether Plaintiff looked down at his cell phone for more than eight seconds 

while driving 70 miles an hour on IH-35 before he ran into McClain. See id. (“Defendants argue 

that this split second allegedly lasted only eight seconds and the correlating dash camera footage 

shows that Defendant McClain did not switch lanes during that small eight second period.”).

Considering the summary judgment record as a whole, including the dash-camera footage, 

Jerez’s testimony, and Plaintiff’s admission that he did not observe McClain change lanes, there 

is no evidence that McClain “made an unsafe lane change causing Plaintiff to violently rear-end[ ] 

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Defendant.” Dkt. 1-3 ¶ 9. There is no genuine issue of material fact that McClain did not breach 

his duty of care by making an unsafe lane change that caused the collision.

2. Speed

Plaintiff also argues that McClain breached his duty of care by driving below the speed limit 

in a hazardous manner. Dkt. 28 at 5. Defendants reply that the dash-camera footage shows McClain

driving with the flow of traffic, as an ordinarily prudent person would, and that there is no record 

evidence that McClain breached his duty by driving at a reduced speed. Dkt. 30 at 2-3.

McClain testified that he was driving around 30 to 40 miles per hour at the time of the accident, 

below the posted speed limit of 70 miles per hour, because he was preparing to enter the line for 

an open weigh station. Dkt. 28-1 at 15-16, McClain Tr. at 14:23-25, 15:1-5. Jerez also testified 

that traffic in the right lane was traveling more slowly near the weigh station entrance. Dkt. 26-1 

at 10-11, 17, Jerez Tr. at 8:14-9:6, 15:3-7. The dash-camera footage shows McClain driving at a 

speed consistent with the flow of traffic in the right lane. Dkt. 26-4. Similarly, the crash report 

states: “Unit 2 [McClain] was slowing in the right lane of SB IH-35 to enter a commercial motor 

vehicle inspection station. Unit 1 [Plaintiff] changed lanes from the center lane to the right around 

the witness [Jerez] and failed to control speed, striking the rear of Unit 2’s trailer.” Dkt. 28-2 at 3. 

Plaintiff did not testify that McClain’s reduced speed was a factor in the crash. There is no 

evidence that McClain breached his duty of care by driving below the speed limit. 

3. Conclusion as to Negligence

Plaintiff has not met his burden to identify specific evidence in the record showing a genuine 

issue of material fact as to either of his breach-of-duty theories. Accordingly, Defendants are 

entitled to summary judgment on Plaintiff’s negligence claim against McClain.

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B. Respondeat Superior

Defendants argue that Plaintiff’s assertion of vicarious liability against Transport America fails 

as a matter of law because its employee, McClain, was not negligent. Dkt. 26 at 8. Plaintiff did not 

address this argument in his response.

Under the theory of respondeat superior, an employer is vicariously liability for the negligent 

acts of its employee if the employee’s actions are within the course and scope of his employment. 

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007). Doctrines of vicarious 

liability do not apply where the alleged tortfeasor is not liable as a matter of law. See Crooks v. 

Moses, 138 S.W.3d 629, 638 (Tex. App.—Dallas 2004, pet. denied) (stating that the vicarious 

liability determination is never reached if the alleged tortfeasor is not liable as a matter of law); 

see also Turner v. Upton Cnty., Tex., 915 F.2d 133, 138 n.7 (5th Cir. 1990) (stating that respondeat

superior is not an independent cause of action). Because Plaintiff’s negligence claim against 

McClain fails for lack of evidence, Plaintiff cannot hold Transport America vicariously liable

under a theory of respondeat superior.

V. Recommendation

Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the District 

Court GRANT Defendants’ Motion for Summary Judgment on Plaintiff’s Claim of Negligence 

(Dkt. 26) and enter judgment for Defendants.

IT IS FURTHER ORDERED that this case be removed from the Magistrate Court’s docket 

and returned to the docket of the Honorable David A. Ezra.

VI. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections 

must specifically identify those findings or recommendations to which objections are being made. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. 

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United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written 

objections to the proposed findings and recommendations contained in this Report within fourteen 

(14) days after the party is served with a copy of the Report shall bar that party from de novo 

review by the District Court of the proposed findings and recommendations in the Report and, 

except on grounds of plain error, shall bar the party from appellate review of unobjected-to 

proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. 

§ 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. 

Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on June 15, 2021.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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