1 Defendants removed the case to this court on January 12, 2006,

pursuant to 28 U.S.C. § 1446(b).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

PATRICK WILLIAMS, §

§

Plaintiff, §

§

VS. § NO. 4:06-CV-032-A

§

OZARK MOTOR LINES, ET AL., §

§

Defendants. §

Memorandum Opinion

and

O R D E R

Came on for consideration the motion of defendants, Ozark

Motor Lines ("Ozark") and Ellis Parker ("Parker"), for partial

summary judgment. Plaintiff, Patrick Williams, ("Williams") has

failed to respond. Having considered the motion, the summary

judgment record, and the applicable authorities, the court has

concluded that the motion should be granted.

I.

Williams' Petition

Williams commenced this action on November 21, 2005, in the

413th Judicial District Court of Johnson County, Texas.1 In his

active pleading, his original state court petition, he sounds out

various negligence claims against defendants for injuries he

allegedly sustained during an automobile accident on March 21,

2005, involving his vehicle and a commercial vehicle owned by

Ozark and driven by Parker. Specifically, Williams claims

 

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defendants committed the following fifteen separate acts of

negligence in connection with the accident:

(a) [Parker] failed to pay attention to the roadway

ahead of his truck and failed to control his

speed;

(b) [Parker] failed to slow down for the slow moving

traffic;

(c) [Parker] was negligent per se due to violations of

Federal Regulations more fully set forth in 49 CFR

Section 382.201-382.503.

(d) [Ozark] was negligent in the hiring of [Parker] in

accordance with 49 CFR Section 391.

(e) [Ozark] was negligent in trusting its tractor and

trailer to be operated by [Parker].

(f) [Ozark] was negligent because it knew or should

have known that [Parker] was incompetent or

habitually wreckless [sic.] and [Ozark] was

grossly negligent in entrusting the vehicle to

[Parker].

(g) [Ozark] was negligent in the hiring and retention

of [Parker].

(h) [Ozark] negligently hired its driver in accordance

with 49 CFR Section 391.

(i) [Ozark] was negligent in the training of its

drivers.

(j) [Ozark] was negligent in the maintenance of its

tractor and trailer.

(k) [Ozark] was negligent in inspecting, repairing and

maintaining its vehicles in accordance with 49 CFR

Section 393.

(l) [Ozark] was negligent in allowing unsafe vehicles

to operate on the nations highways in accordance

with 49 CFR Section 393.

(m) [Ozark] was negligent in allowing its drivers to

use the tractor trailer in accordance with 49 CFR

Section 392.

 

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(n) [Ozark] was negligent in allowing the use of a

fatigued driver in accordance with 49 CFR Section

395.

(o) [Ozark] failed to properly investigate the

accident.

Pet. at 2-3. Williams alleges damages of past and future medical

treatment; past and continuing physical pain and suffering; past

and continuing mental and emotional distress; past and continuing

loss of wages and employment benefits; a permanent disability;

permanent disfigurement; and loss of consortium.

II.

Grounds for Defendants' Motion

By their arguments, defendants contend that summary judgment

is proper as to all of Williams' claims except his claims that

Parker (a) failed to pay attention to the roadway and to control

his speed, and (b) failed to slow down for the slow moving

traffic. Specifically, defendants urge that:

1. There is no evidence supporting Williams' allegation 

that Parker was negligent per se for violating 49 C.F.R. §§

382.201-382.503.

2. There is no evidence that Ozark negligently hired, 

entrusted, or retained Parker, or that Ozark was grossly

negligent in committing the same, because there is no evidence

that (i) Parker was unlicensed, incompetent or reckless when

hired by Ozark, (ii) that Ozark negligently hired Parker in

violation of 49 C.F.R. § 391, et seq., and (iii) Ozark's decision

to hire Parker was grossly negligent.

3. Ozark is entitled to summary judgment on Williams' 

 

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ground that Ozark was negligent in its training of Parker because

as an experienced commercial driver with a clean driving record,

Ozark had no duty to train him; alternatively, should Ozark have

such a duty, that there is no evidence Ozark breached that duty

or that inadequate training was the proximate cause of Williams'

injuries.

4. Williams' common law and regulatory-based claims that 

Ozark negligently maintained its equipment fail because (i)

Williams does not allege injuries stemming from such negligence,

and (ii) the summary judgment evidence establishes that Ozark

properly inspected its equipment.

5. There is no evidence that Ozark negligently allowed (i) 

unsafe vehicles to operate on the highway, (ii) Parker to use the

tractor trailer, and (iii) Parker to drive in a fatigued state in

violation of 49 C.F.R. § 395.

6. Because Williams cannot prove any causation or damages, 

his claim that Ozark failed to properly investigate the accident

must fail.

IV.

Applicable Summary Judgment Principals

A party is entitled to summary judgment on all or any part

of a claim as to which there is no genuine issue of material fact

and as to which the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). The moving party has the initial

burden of showing that there is no genuine issue of material

 

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fact. Anderson, 477 U.S. at 256. The movant may discharge this

burden by pointing out the absence of evidence to support one or

more essential elements of the non-moving party's claim "since a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25

(1986). Once the moving party has carried its burden under Rule

56(c), the non-moving party must do more than merely show that

there is some metaphysical doubt as to the material facts. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The party opposing the motion may not rest on

mere allegations or denials of pleading, but must set forth

specific facts showing a genuine issue for trial. Anderson, 477

U.S. at 248, 256. To meet this burden, the nonmovant must

"identify specific evidence in the record and articulate the

'precise manner' in which that evidence support[s] [its]

claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

An issue is material only if its resolution could affect the

outcome of the action. Anderson, 477 U.S. at 248. Unsupported

allegations, conclusory in nature, are insufficient to defeat a

proper motion for summary judgment. Simmons v. Lyons, 746 F.2d

265, 269 (5th Cir. 1984).

V.

Undisputed Evidence

 

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The following is an overview of the evidence pertinent to

the motion for summary judgment that is undisputed in the summary

judgment record.

Parker was hired as a driver by Vortex Truck Lines, Inc. in

April 2004. Prior to that, Parker had been employed as a driver

by Opies Transport, Inc., from July 16, 2003, until October 14,

2003. While employed by Opies Transport, Parker was not involved

in an accident; did not test positive for any controlled

substance; had not refused to submit to a drug or alcohol test;

and did not commit any known violations of industry substance

abuse rules.

On March 14, 2005, Ozark acquired all of the employees and

assets of Vortex Truck Lines, Inc. As part of its due diligence

before the acquisition, Ozark attempted to verify that each of

Vortex's drivers where capable of operating a commercial vehicle,

were licensed to drive a commercial vehicle, and that each driver

was in compliance with 49 C.F.R. § 391. Specifically with

regard to Parker, Ozark determined that he had a valid

Mississippi commercial drivers license; had not been involved in

any accidents within the previous three years; and that he had

never tested positive for drugs or alcohol or any other

controlled substance. There was nothing contained in the file

reviewed by Ozark prior to the acquisition indicating that Parker

was an incompetent driver. On March 21, 2005, Parker was driving

a freight truck and trailer eastbound on Highway 183 in Bedford,

 

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Texas, when he rear-ended Williams, who was traveling in a 2000

Chevrolet Silverado. 

VI.

Analysis

A. The Law of Negligence

The elements of an actionable negligence claim include duty,

breach of duty, proximate cause, and damages; plaintiff has the

burden of producing evidence on each of those elements. Where

the plaintiff seeks to prove negligence per se, he must show that

the defendant violated a statute, municipal ordinance, or

administrative rule or regulation which has been adopted by the

court as setting a standard for the reasonable man. Freudiger v.

Keller, 104 S.W.3d 294, 296 (Tex. App.--Texarkana April 18, 2003,

pet. denied). To prove gross negligence, the plaintiff must show

that the defendant's acts or omissions involved an extreme degree

of risk, and that the defendant had an actual, subjective

awareness of the risk involved but nevertheless proceeded with

conscious indifference towards those risks. Tex. Civ. Prac. &

Rem. Code Ann. § 41.001(11).

 

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2 In his scattergun approach, Williams alleges that Parker is

negligent per se for violating a total of twenty-two separate

regulations of the Federal Motor Carrier Safety Regulations, the

majority of which are inapplicable. See, e.g., 49 C.F.R. § 382.301

(testing requirements for employer); Id. at § 382.405 ("Access to

facilities and records."); Id. at § 382.411 ("employer shall notify a

driver of the pre-employment controlled substance test.").

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B. Law Applied to the Summary Judgment Evidence

i. Claim for Negligence Per Se

To defeat defendants' motion as to his claim of negligence

per se, Williams must adduce some evidence that Parker violated a

duty imposed upon him by 49 C.F.R. § 382.301 through 503.2 The

purpose of those regulations "is to establish programs designed

to help prevent accidents and injuries resulting from the misuse

of alcohol or use of controlled substances by drivers of

commercial motor vehicles." 49 C.F.R. § 382.101. There is no

evidence that the accident resulted from Parker's misuse of

alcohol or use of controlled substances.

ii. Claims Against Ozark for the Negligent Hiring,

Entrustment, and Retention of Parker

There is no evidence to support plaintiff's contention that

Ozark was negligent in its hiring, entrustment, or retention of

Parker. This conclusion applies as well to Williams' claim that

Ozark failed to comply with 49 C.F.R. § 391, et seq., with

respect to Parker; and to his allegation that Ozark was grossly

negligent with regard to its hiring, entrustment, and retention

of Parker. The summary judgment evidence actually supports the

inference that Ozark was quite diligent with regard to its

decision to employ Parker after the Vortex accusation.

 

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iii. Claim Against Ozark for the Negligent Training of

Parker

Assuming that Ozark had a duty to train an experienced

driver like Parker, there is no evidence that Ozark was negligent

in such training. 

iv. Claims Against Ozark for Negligent Maintenance,

Negligent Inspecting, and Negligent Repair.

There is no evidence that Ozark was negligent in the

maintenance, inspection, and/or repair of the vehicle involved in

the accident.

v. Claims Against Ozark for Negligence Based on the

Operation of an Unsafe Vehicle, allowing Parker to

Drive the Tractor Trailer, and allowing Parker to Drive

in a Fatigued State.

The Federal Motor Carrier Safety Regulations sets forth the

minimum commercial standards for the upkeep of the parts and

accessories necessary for the safe operation of a commercial

vehicle. 49 C.F.R. 393.1, et seq. There is no evidence that

Ozark was negligent in the upkeep of the vehicle involved in the

accident as defined by those regulations, or that the vehicle was

in any way unsafe. 

Likewise, there is no evidence that Ozark was negligent for

allowing its drivers to use the vehicle involved in the accident. 

Williams' claim that Ozark violated 49 C.F.R. § 395, et

seq., fails because there is no evidence that Parker had been

driving longer than the maximum time allowed for property

 

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3 The court interprets Williams' claim that Parker was

"fatigued" to allege that Ozark violated § 395.3 by allowing Parker

to drive after he had exceeded the "maximum driving time for

property-carrying vehicles."

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carrying vehicle drivers set forth in the Federal Motor Carrier

Safety Regulations.3

vi. Claim that Ozark Negligently Investigated the Accident

Williams' alleged injuries all stem from the auto accident. 

He alleges no injury that could have resulted from Ozark's

investigation. Therefore, summary judgment on the negligent

investigation claim is appropriate.

 

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VII.

O R D E R

For the reasons stated herein, 

The court further ORDERS that defendant's motion for partial

summary judgment be, and is hereby, granted.

The court further ORDERS that all of the claims asserted by

Williams against defendants, other than his claims identified in

subparagraphs (a) and (b) on page four of his original petition,

be, and are hereby, dismissed with prejudice. 

SIGNED June 29, 2006

 /s/ John McBryde

JOHN McBRYDE

United States District Judge

 

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